EXHIBIT 4
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 28, 2005
____________________________________________________
Mortgage Pass-Through Certificates
Series 2005-1F
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Interest Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Custodian of the Mortgage Loans............
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer....................................................
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the REMICs.......................
Section 2.06 Designation of Start-up Day..................................
Section 2.07 REMIC Certificate Maturity Date..............................
Section 2.08 Execution and Delivery of Certificates.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.......................
Section 3.02 Monitoring of Servicer.......................................
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................
Section 3.04 Access to Certain Documentation..............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.....
Section 3.06 Rights of the Depositor, the Securities Administrator and
the Trustee in Respect of the Master Servicer...............
Section 3.07 Trustee to Act as Master Servicer............................
Section 3.08 Servicer Custodial Account and Escrow Account................
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account; Certificate Account and Reserve Funds....
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the Certificate Account and
the Master Servicer Custodial Account.......................
Section 3.12 Maintenance of Hazard Insurance and Other Insurance..........
Section 3.13 Presentment of Claims and Collection of Proceeds.............
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.16 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.........................
Section 3.18 Master Servicer Compensation.................................
Section 3.19 Annual Statement as to Compliance............................
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.21 Advances.....................................................
Section 3.22 Reports to the Securities and Exchange Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions................................................
Section 5.02 Priorities of Distributions..................................
Section 5.03 Allocation of Losses.........................................
Section 5.04 Statements to Certificateholders.............................
Section 5.05 Returns and Reports to Certificateholders................
Section 5.06 Tax Matters Person...........................................
Section 5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator....................................
Section 5.08 REMIC Related Covenants......................................
Section 5.09 Determination of LIBOR.......................................
Section 5.10 Master Servicer, Securities Administrator and Trustee
Indemnification.............................................
Section 5.11 Grantor Trust Administration.................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer....................................................
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer....................................................
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicer and Others.........................................
Section 7.04 Depositor and Master Servicer Not to Resign..................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................
Section 8.02 Remedies of Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of the Master Servicer and
upon Event of Default.......................................
Section 8.05 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE, THE CUSTODIAN AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator...............
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator...............................................
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee and Securities Administrator May Own Certificates....
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator...............................................
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator...............................................
Section 9.07 Successor Trustee or Securities Administrator................
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator...............................................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Securities Administrator's Fees and Expenses, Custodian's
Fees and Expenses and Trustee's Fees and Expenses;
Indemnification.............................................
Section 9.12 [Reserved]...................................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates..........................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans.......................................................
Section 10.02 Additional Termination Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Certificates Nonassessable and Fully Paid....................
Section 11.08 Access to List of Certificateholders.........................
Section 11.09 Recharacterization...........................................
Section 11.10 Third Party Beneficiary......................................
EXHIBITS
Exhibit A-1-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1-A-2 Form of Face of Class 1-A-2 Certificate
Exhibit A-1-A-3 Form of Face of Class 1-A-3 Certificate
Exhibit A-1-A-4 Form of Face of Class 1-A-4 Certificate
Exhibit A-1-A-5 Form of Face of Class 1-A-5 Certificate
Exhibit A-1-A-6 Form of Face of Class 1-A-6 Certificate
Exhibit A-1-A-7 Form of Face of Class 1-A-7 Certificate
Exhibit A-1-A-8 Form of Face of Class 1-A-8 Certificate
Exhibit A-1-IO Form of Face of Class 1-IO Certificate
Exhibit A-1-A-R Form of Face of Class 1-A-R Certificate
Exhibit A-2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit A-2-A-2 Form of Face of Class 2-A-2 Certificate
Exhibit A-2-A-3 Form of Face of Class 2-A-3 Certificate
Exhibit A-2-A-4 Form of Face of Class 2-A-4 Certificate
Exhibit A-2-A-5 Form of Face of Class 2-A-5 Certificate
Exhibit A-2-A-6 Form of Face of Class 2-A-6 Certificate
Exhibit A-2-A-7 Form of Face of Class 2-A-7 Certificate
Exhibit A-2-A-8 Form of Face of Class 2-A-8 Certificate
Exhibit A-3-A-1 Form of Face of Class 3-A-1 Certificate
Exhibit A-4-A-1 Form of Face of Class 4-A-1 Certificate
Exhibit A-CB-IO Form of Face of Class CB-IO Certificate
Exhibit A-X-PO Form of Face of Class X-PO Certificate
Exhibit B-1 Form of Face of Class B-1 Certificate
Exhibit B-2 Form of Face of Class B-2 Certificate
Exhibit B-3 Form of Face of Class B-3 Certificate
Exhibit B-4 Form of Face of Class B-4 Certificate
Exhibit B-5 Form of Face of Class B-5 Certificate
Exhibit B-6 Form of Face of Class B-6 Certificate
Exhibit C Form of Reverse of all Certificates.....................
Exhibit D-1 Loan Group 1 Mortgage Loan Schedule.....................
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule.....................
Exhibit D-3 Loan Group 3 Mortgage Loan Schedule.....................
Exhibit D-4 Loan Group 4 Mortgage Loan Schedule.....................
Exhibit E Request for Release of Documents........................
Exhibit F Form of Certification of Establishment of Account.......
Exhibit G-1 Form of Transferor's Certificate........................
Exhibit G-2A Form 1 of Transferee's Certificate......................
Exhibit G-2B Form 2 of Transferee's Certificate......................
Exhibit H Form of Transferee Representation Letter for ERISA
Restricted Certificates.................................
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificate ............................................
Exhibit J List of Recordation States..............................
Exhibit K Form of Initial Certification of the Custodian..........
Exhibit L Form of Final Certification of the Custodian............
Exhibit M Form of Xxxxxxxx-Xxxxx Certification....................
Exhibit N Form of Securities Administrator's Certification........
Exhibit O Class 1-A-1 Yield Maintenance Agreement.................
Exhibit P Class 0-X-0 Xxxxx Xxxxxxxxxxx Agreement.................
Exhibit Q Custodial Agreement.....................................
Exhibit R Servicing Agreement.....................................
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 28, 2005, is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO BANK, N.A., as master servicer (together with its permitted successors and
assigns, in such capacity, the "Master Servicer") and as securities
administrator (together with its permitted successors and assigns, in such
capacity, the "Securities Administrator"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, as trustee (together with its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes shall be treated as three real estate mortgage investment
conduits (the "Upper-Tier REMIC," the "Middle-Tier REMIC" and the "Lower-Tier
REMIC," respectively, and each a "REMIC"). The Uncertificated Lower-Tier
Interests will represent the "regular interests" and the Class LR Interest shall
be the "residual interest" in the Lower-Tier REMIC for purposes of the REMIC
Provisions. The Uncertificated Lower-Tier Interests shall constitute the assets
of the Middle-Tier REMIC. The Uncertificated Middle-Tier Interests shall
constitute the "regular interests" and the Class MR Interest shall be the
"residual interest" in the Middle-Tier REMIC. The Uncertificated Middle-Tier
Interests shall constitute the assets of the Upper-Tier REMIC. The Senior
Certificates (other than the Class 1-A-R Certificate, the Class CB-IO
Certificates, the Class X-PO Certificates and the rights of the Class 1-A-1 and
Class 2-A-1 Certificates to receive amounts from the related Reserve Fund), the
Components and the Class B Certificates are referred to collectively as the
"Regular Certificates" and shall constitute "regular interests" in the
Upper-Tier REMIC for purposes of the REMIC Provisions. The Class UR Interest
shall be the "residual interest" in the Upper-Tier REMIC for purposes of the
REMIC Provisions. The Class 1-A-R Certificate shall represent beneficial
ownership of the Class LR Interest, the Class MR Interest and the Class UR
Interest. The portion of the Trust Estate consisting of the Reserve Funds, the
Yield Maintenance Agreements and the rights of the Class 1-A-1 and Class 2-A-1
Certificates to receive amounts from the related Reserve Fund shall not be
assets of any REMIC created hereunder, but rather shall be assets of the Grantor
Trust. The "latest possible maturity date" for federal income tax purposes of
all interests created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates
and the Components, together with the minimum denominations and integral
multiples in excess thereof in which the Classes of Certificates shall be
issuable:
Initial Class Integral
Certificate Pass- Multiples in
Balance or Through Minimum Excess of
Classes Notional Amount Rate Denomination Minimum
----------- --------------- ------- ------------ ------------
Class 1-A-1 $106,138,000.00 (1) $1,000 $1
Class 1-A-2 $106,138,000.00 (2) $1,000,000 $1
Class 1-A-3 $16,561,000.00 5.750% $1,000 $1
Class 1-A-4 $1,840,000.00 5.750% $1,000 $1
Class 1-A-5 $20,651,000.00 5.750% $1,000 $1
Class 1-A-6 $18,660,000.00 5.750% $1,000 $1
Class 1-A-7 $8,364,000.00 5.750% $1,000 $1
Class 1-A-8 $11,793,000.00 5.750% $1,000 $1
Class 1-IO $20,146,950.00 5.500% $1,000,000 $1
Class 1-A-R $100.00 5.750% $100 N/A
Class 2-A-1 $70,000,000.00 (3) $1,000 $1
Class 2-A-2 $70,000,000.00 (4) $1,000,000 $1
Class 2-A-3 $23,603,000.00 5.750% $1,000 $1
Class 2-A-4 $2,622,000.00 5.750% $1,000 $1
Class 2-A-5 $19,916,000.00 5.750% $1,000 $1
Class 2-A-6 $3,414,000.00 5.750% $1,000 $1
Class 2-A-7 $2,886,000.00 5.750% $1,000 $1
Class 2-A-8 $91,616,000.00 6.000% $1,000 $1
Class 3-A-1 $120,439,000.00 6.500% $1,000 $1
Class 4-A-1 $117,447,000.00 6.500% $1,000 $1
Class CB-IO $23,536,732.00 (5) $1,000,000 $1
Class X-PO $2,334,874.00 (6) $25,000 $1
Class B-1 $25,119,000.00 (7) $25,000 $1
Class B-2 $8,258,000.00 (7) $25,000 $1
Class B-3 $4,817,000.00 (7) $25,000 $1
Class B-4 $4,817,000.00 (7) $25,000 $1
Class B-5 $4,130,000.00 (7) $25,000 $1
Class B-6 $2,752,758.00 (7) $25,000 $1
Class 2-IO $8,210,829.20 5.500% N/A N/A
Class 3-IO $5,069,069.60 5.500% N/A N/A
Class 4-IO $10,256,833.20 5.500% N/A N/A
Class 1-PO $422,573.50 (8) N/A N/A
Class 2-PO $1,195,113.76 (8) N/A N/A
Class 3-PO $528,792.74 (8) N/A N/A
Class 4-PO $188,394.00 (8) N/A N/A
------------
(1) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-1 Certificates at the rate of 5.010% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 1-A-1
Certificates at a per annum rate equal to (i) 0.650% plus (ii) LIBOR,
subject to a minimum rate of 0.650% and a maximum rate of 5.750%.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-2 Certificates at the rate of 0.740% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 1-A-2
Certificates at a per annum rate equal to (i) 5.100% minus (ii) LIBOR,
subject to a minimum rate of 0.000% and a maximum rate of 5.100%.
(3) During the initial Interest Accrual Period, interest will accrue on the
Class 2-A-1 Certificates at the rate of 5.010% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 2-A-1
Certificates at a per annum rate equal to (i) 0.650% plus (ii) LIBOR,
subject to a minimum rate of 0.650% and a maximum rate of 5.750%.
(4) During the initial Interest Accrual Period, interest will accrue on the
Class 2-A-2 Certificates at the rate of 0.740% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class 2-A-2
Certificates at a per annum rate equal to (i) 5.100% minus (ii) LIBOR,
subject to a minimum rate of 0.000% and a maximum rate of 5.100%.
(5) The Class CB-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of three
Components described in the table: the Class 2-IO Component, the Class 3-IO
Component and the Class 4-IO Component.
(6) The Class X-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of four
Components described in the table: the Class 1-PO Component, the Class 2-PO
Component, the Class 3-PO Component and the Class 4-PO Component.
(7) Interest will accrue on the Class B Certificates for each Distribution Date
at a per annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of (i) with respect to Loan Group 1,
5.750%, (ii) with respect to Loan Group 2, 5.857%, (iii) with respect to
Loan Group 3, 6.500% and (iv) with respect to Loan Group 4, 6.500%.
(8) The Class 1-PO Component, Class 2-PO Component, Class 3-PO Component and
Class 4-PO Component are Principal Only Components and will not bear
interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class (other than the Class CB-IO Certificates), one month's
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Class Certificate Balance or Notional
Amount. For any Distribution Date and the Class CB-IO Certificates, the sum of
the Accrued Component Interest for each Class IO Component.
Accrued Component Interest: For any Distribution Date and each
interest-bearing Component, one month's interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the related
Notional Amount.
Adjusted Pool Amount: With respect to any Distribution Date and Loan
Group, the Cut-off Date Pool Principal Balance of the Mortgage Loans of such
Loan Group minus the sum of (i) all amounts in respect of principal received in
respect of the Mortgage Loans in such Loan Group (including, without limitation,
amounts received as Monthly Payments, Periodic Advances, Principal Prepayments,
Liquidation Proceeds and Substitution Adjustment Amounts) and distributed to
Holders of the Certificates of the Related Group on such Distribution Date and
all prior Distribution Dates and (ii) the principal portion of all Realized
Losses (other than Debt Service Reductions) incurred on the Mortgage Loans in
such Loan Group from the Cut-off Date through the end of the month preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the difference between the Adjusted Pool
Amount and the Adjusted Pool Amount (PO Portion) for such Loan Group.
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date and Loan Group, the sum of the amount, calculated as follows: the product
of (i) the PO Percentage for such Mortgage Loan and (ii) the remainder of (A)
the Cut-off Date Principal Balance of such Mortgage Loan minus (B) the sum of
(x) all amounts in respect of principal received in respect of such Mortgage
Loan (including, without limitation, amounts received as Monthly Payments,
Periodic Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates of the
Related Group on such Distribution Date and all prior Distribution Dates and (y)
the principal portion of any Realized Loss (other than a Debt Service Reduction)
incurred on such Mortgage Loan from the Cut-off Date through the end of the
month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Advance Date: As to any Distribution Date and each Mortgage
Loan, the Business Day preceding the related Remittance Date.
Aggregate Subordinate Percentage: As to any Distribution Date,
the aggregate Class Certificate Balance of the Subordinate Certificates
divided by the aggregate Pool Stated Principal Balance (Non-PO Portion) for
the Loan Groups.
Agreement: This Pooling and Servicing Agreement together with
all amendments hereof and supplements hereto.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan or, in certain cases, an
automated valuation model (if applicable) or tax assessed value and (b) the
sales price for such property, except that, in the case of Mortgage Loans the
proceeds of which were used to refinance an existing mortgage loan, the
Appraised Value of the related Mortgaged Property is the appraised value thereof
determined in an appraisal obtained at the time of refinancing or, in certain
cases, an automated valuation model (if applicable) or tax assessed value, or
(ii) the appraised value determined in an appraisal made at the request of a
Mortgagor subsequent to origination in order to eliminate the Mortgagor's
obligation to keep a Primary Mortgage Insurance Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation.
Book-Entry Certificate: All Classes of Certificates other than
the Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the states in which the servicing offices of any Servicer are located,
the state or states in which the master servicing offices of the Master Servicer
are located or the state or states in which the Corporate Trust Offices of the
Trustee and the Securities Administrator are located are required or authorized
by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the SunTrust Alternative Loan Trust, Series
2005-1F, Mortgage Pass-Through Certificates, Series 2005-1F that are issued
pursuant to this Agreement.
Certificate Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.09(b) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as Securities
Administrator for Wachovia Bank, National Association, as Trustee, in trust for
registered holders of SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through Certificates, Series 2005-1F." The Certificate Account shall be
deemed to consist of six sub-accounts; one for each Loan Group, a fifth
sub-account referred to herein as the Middle-Tier Certificate Sub-Account and a
sixth sub-account referred to herein as the Upper-Tier Certificate Sub-Account.
Funds in the Certificate Account shall be held in trust for the Holders of the
Certificates for the uses and purposes set forth in this Agreement.
Certificate Balance: With respect to any Certificate (other than the
Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO Certificates) at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part. The Class 1-A-2, Class 1-IO,
Class 2-A-2 and Class CB-IO Certificates have no Certificate Balance.
Certificate Custodian: Initially, Xxxxx Fargo Bank, N.A.;
thereafter any other Certificate Custodian acceptable to the Depository and
selected by the Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect
to any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section 6.02.
Certificate Registrar: The registrar appointed pursuant to
Section 6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer, SunTrust Capital Markets, Inc. or
any affiliate thereof shall be deemed not to be outstanding and the Percentage
Interest and Voting Rights evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests or Voting
Rights, as the case may be, necessary to effect any such consent has been
obtained, unless such entity is the registered owner of the entire Class of
Certificates, provided that the Securities Administrator shall not be
responsible for knowing that any Certificate is registered in the name of an
affiliate of the Depositor, SunTrust Capital Markets, Inc. or the Master
Servicer unless one of its Responsible Officers has actual knowledge thereof.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class
1-IO, Class 1-A-R, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4, Class
2-A-5, Class 2-A-6, Class 2-A-7, Class 2-A-8, Class 3-A-1, Class 4-A-1, Class
CB-IO, Class X-PO, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates, as the case may be.
Class 1-A-1 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 1-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-1 Reserve Fund: The trust account created and maintained
by the Securities Administrator pursuant to Section 3.09(i) which shall be
entitled the "Class 1-A-1 Reserve Fund, Xxxxx Fargo Bank, N.A., as Securities
Administrator, in trust for registered Holders of the Class 1-A-1 Certificates
of the SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage Pass-Through
Certificates, Series 2005-1F" and which must be an Eligible Account. Amounts on
deposit in the Class 1-A-1 Reserve Fund shall not be invested. The Class 1-A-1
Reserve Fund shall not be an asset of any REMIC formed under this Agreement.
Class 1-A-1 Yield Maintenance Agreement: The yield
maintenance agreement between the Securities Administrator, on behalf of the
Trust, and the Counterparty, which will be primarily for the benefit of the
Class 1-A-1 Certificates, attached hereto as Exhibit O. The Class 1-A-1
Yield Maintenance Agreement shall not be an asset of any REMIC formed under
this Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Agreement Payment: For any
Distribution Date (other than the Distribution Date in January 2006) prior to
and including the Distribution Date in May 2017, the amount, if any, required
to be paid by the Counterparty to the Securities Administrator under the
Class 1-A-1 Yield Maintenance Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Xxxxxx: For any Distribution
Date (other than the Distribution Date in January 2006) prior to and
including the Distribution Date in May 2017, an amount equal to the product
of (a) the Class Certificate Balance of the Class 1-A-1 Certificates
immediately prior to such Distribution Date, (b) the excess of (i) the lesser
of 8.85% and LIBOR over (ii) 5.10% and (c) one-twelfth.
Class 1-A-1 Yield Maintenance Amount Shortfall: For any Distribution
Date, the amount, if any, by which the Class 1-A-1 Yield Maintenance Amount for
such Distribution Date exceeds the sum of the Class 1-A-1 Yield Maintenance
Agreement Payment for such Distribution Date and any Excess Funds in the Class
1-A-1 Reserve Fund.
Class 1-A-2 Notional Amount: As to any Distribution Date and the
Class 1-A-2 Certificates, the Class Certificate Balance of the Class 1-A-1
Certificates.
Class 1-A-3 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 1-A-3 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-4 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 1-A-4 Certificates with respect to such
Distribution Date prior to any reduction for the Class 1-A-4 Loss Allocation
Amount and (b) the Class 1-A-3 Loss Amount with respect to such Distribution
Date.
Class 1-A-8 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 1-A-8 Certificates with respect to such
Distribution Date prior to any reduction for the Class 1-A-8 Loss Allocation
Amount and (b) the Class 1-A-1 Loss Amount with respect to such Distribution
Date.
Class 1-IO Notional Amount: With respect to each Distribution Date
and the Class 1-IO Certificates, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 1 Premium Mortgage Loans
as of the Due Date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 1 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 1 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
5.750% and (b) the denominator of which is equal to 5.500%.
Class 2-A-1 Reserve Fund: The trust account created and maintained
by the Securities Administrator pursuant to Section 3.09(i) which shall be
entitled the "Class 2-A-1 Reserve Fund, Xxxxx Fargo Bank, N.A., as Securities
Administrator, in trust for registered Holders of the Class 2-A-1 Certificates
of the SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage Pass-Through
Certificates, Series 2005-1F" and which must be an Eligible Account. Amounts on
deposit in the Class 2-A-1 Reserve Fund shall not be invested. The Class 2-A-1
Reserve Fund shall not be an asset of any REMIC formed under this Agreement.
Class 2-A-1 Yield Maintenance Agreement: The yield
maintenance agreement between the Securities Administrator, on behalf of the
Trust, and the Counterparty, which will be primarily for the benefit of the
Class 2-A-1 Certificates, attached hereto as Exhibit P. The Class 2-A-1
Yield Maintenance Agreement shall not be an asset of any REMIC formed under
this Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Agreement Payment: For any
Distribution Date (other than the Distribution Date in January 2006) prior to
and including the Distribution Date in October 2014, the amount, if any,
required to be paid by the Counterparty to the Securities Administrator under
the Class 2-A-1 Yield Maintenance Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Xxxxxx: For any Distribution
Date (other than the Distribution Date in January 2006) prior to and
including the Distribution Date in October 2014, an amount equal to the
product of (a) the Class Certificate Balance of the Class 2-A-1 Certificates
immediately prior to such Distribution Date, (b) the excess of (i) the lesser
of 8.85% and LIBOR over (ii) 5.10% and (c) one-twelfth.
Class 2-A-1 Yield Maintenance Amount Shortfall: For any Distribution
Date, the amount, if any, by which the Class 2-A-1 Yield Maintenance Amount for
such Distribution Date exceeds the sum of the Class 2-A-1 Yield Maintenance
Agreement Payment for such Distribution Date and any Excess Funds in the Class
2-A-1 Reserve Fund.
Class 2-A-2 Notional Amount: As to any Distribution Date and the
Class 2-A-2 Certificates, the Class Certificate Balance of the Class 2-A-1
Certificates.
Class 2-A-3 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 2-A-3 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 2-A-4 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 2-A-4 Certificates with respect to such
Distribution Date prior to any reduction for the Class 2-A-4 Loss Allocation
Amount and (b) the Class 2-A-3 Loss Amount with respect to such Distribution
Date.
Class 2-IO Notional Amount: With respect to each Distribution Date
and the Class 2-IO Component, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 2 Premium Mortgage Loans
as of the due date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 2 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 2 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
5.857% and (b) the denominator of which is equal to 5.500%.
Class 3-IO Notional Amount: With respect to each Distribution Date
and the Class 3-IO Component, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 3 Premium Mortgage Loans
as of the due date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 3 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 3 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
6.500% and (b) the denominator of which is equal to 5.500%.
Class 4-IO Notional Amount: With respect to each Distribution Date
and the Class 4-IO Component, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 4 Premium Mortgage Loans
as of the due date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 4 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 4 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
6.500% and (b) the denominator of which is equal to 5.500%.
Class CB-IO Notional Amount: With respect to any Distribution Date,
an amount equal to the sum of the Class 2-IO Notional Amount, the Class 3-IO
Notional Amount and the Class 4-IO Notional Amount for such Distribution Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class of Certificates
(other than the Class 1-A-2, Class 1-IO, Class 2-A-2, Class CB-IO and Class X-PO
Certificates) and any date of determination, and subject to Section 5.03(f), the
Initial Class Certificate Balance of such Class minus (A) the sum of (i) all
distributions of principal made with respect thereto (including in the case of a
Class of Class B Certificates, any principal otherwise payable to such Class of
Class B Certificates used to pay any Class PO Deferred Amounts), (ii) all
reductions in Class Certificate Balance previously allocated thereto pursuant to
Section 5.03(b) and (iii) in the case of the Class 1-A-4 Certificates, the Class
1-A-8 Certificates and the Class 2-A-4 Certificates, any reduction allocated
thereto pursuant to Section 5.03(e) plus (B) the sum of (i) all increases in
Class Certificate Balance previously allocated thereto pursuant to Section
5.03(b) and (ii) in the case of the Class 1-A-4 Certificates, the Class 1-A-8
Certificates and the Class 2-A-4 Certificates, any increases allocated thereto
pursuant to Section 5.03(e). The Class Certificate Balance of the Class X-PO
Certificates as of any date of determination shall equal the sum of the
Component Balances of the Class PO Components. The Class 1-A-2, Class 1-IO,
Class 2-A-2 and Class CB-IO Certificates are Interest Only Certificates and have
no Class Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the Class CB-IO Certificates), the amount by
which Accrued Certificate Interest for such Class (as reduced pursuant to
Section 5.02(c)) exceeds the amount of interest actually distributed on such
Class on such Distribution Date pursuant to clause (i) of the definition of
"Interest Distribution Amount." As to any Distribution Date and the Class CB-IO
Certificates, the sum of the Component Interest Shortfalls for the Class IO
Components.
Class IO Component: Any of the Class 2-IO Component, the Class 3-IO
Component or the Class 4-IO Component.
Class PO Component: Any of the Class 1-PO Component, the Class 2-PO
Component, the Class 3-PO Component or the Class 4-PO Component.
Class PO Deferred Amount: As to any Distribution Date and each Class
PO Component, the sum of the amounts by which the Component Balance of such
Class PO Component will be reduced on such Distribution Date or has been reduced
on prior Distribution Dates as a result of Section 5.03(b) less the sum of (a)
the Class PO Recoveries with respect to the Related Loan Group for prior
Distribution Dates and (b) the amounts distributed to such Class PO Component
pursuant to Section 5.02(a)(iii) on prior Distribution Dates.
Class PO Recovery: As to any Distribution Date and Loan Group, the
lesser of (a) (i) in the case of Group 1, the Class PO Deferred Amount for the
Class 1-PO Component for such Distribution Date, (ii) in the case of Group 2,
the Class PO Deferred Amount for the Class 2-PO Component for such Distribution
Date, (iii) in the case of Group 3, the Class PO Deferred Amount for the Class
3-PO Component for such Distribution Date and (iv) in the case of Group 4, the
Class PO Deferred Amount for the Class 4-PO Component for such Distribution Date
and (b) an amount equal to the sum, as to each Mortgage Loan in such Loan Group
as to which there has been a Recovery received during the calendar month
preceding the month of such Distribution Date, of the product of (x) the PO
Percentage with respect to such Mortgage Loan and (y) the amount of the Recovery
received during the calendar month preceding the month of such Distribution Date
with respect to such Mortgage Loan.
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class (other than the Class CB-IO Certificates), the
amount by which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount of interest actually distributed on such
Class on such prior Distribution Dates pursuant to clause (ii) of the definition
of "Interest Distribution Amount." As to any Distribution Date and the Class
CB-IO Certificates, the sum of the Component Unpaid Interest Shortfalls for the
Class IO Components.
Closing Date: December 28, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of (a) the aggregate Servicing Fee for the Mortgage
Loans as of the Due Date of the month preceding the month of such Distribution
Date and (b) the aggregate of the Prepayment Interest Shortfalls on the Mortgage
Loans resulting from Principal Prepayments on the Mortgage Loans during the
calendar month preceding the month of such Distribution Date.
Component: Any of the Class IO Components or Class PO Components.
Component Balance: With respect to any Class PO Component and any
date of determination, the Initial Component Balance of such Component minus the
sum of (i) all distributions of principal made with respect thereto and (ii) all
reductions in the related Component Balance previously allocated thereto
pursuant to Section 5.03(b). The Class IO Components are interest only
Components and have no Component Balance.
Component Interest Distribution Amount: For any Distribution Date
and any Class IO Component, the sum of (i) the Accrued Component Interest for
such Component and (ii) any Component Unpaid Interest Shortfall for such
Component. The Class PO Components are principal only Components and are not
entitled to distributions of interest.
Component Interest Shortfall: For any Distribution Date and any
Class IO Component, the amount by which Accrued Component Interest for such
Component exceeds the amount of interest actually distributed on such Component
on such Distribution Date pursuant to clause (i) of the definition of "Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, any of the
Class 2-IO Notional Amount, the Class 3-IO Notional Amount or the Class 4-IO
Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date and
any Class IO Component, the amount by which the aggregate Component Interest
Shortfall for such Component on prior Distribution Dates exceeds the amount of
interest actually distributed on such Component on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Component Interest Distribution
Amount."
Cooperative: A private, cooperative housing corporation which owns
or leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the Cooperative
Apartment occupied by the Mortgagor and relating to the related Cooperative
Stock, which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative
Loan, the stock certificate or other instrument evidencing the related
Cooperative Stock.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of this
instrument is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000-0000 Attention: Structured Finance Trust Services, SALT, Series 2005-1F,
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Depositor, the Securities Administrator
and the Master Servicer. With respect to the Securities Administrator, the
principal corporate trust office of the Securities Administrator at which at any
particular time its corporate trust business with respect to this Agreement is
conducted, which office at the date of the execution of this instrument is
located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services - BAFC SALT 2005-1F, and for certificate transfer
purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: Corporate Trust Services - BAFC SALT 2005-1F, or at such other
address as the Securities Administrator may designate from time to time by
notice to the Certificateholders, the Depositor, the Trustee and the Master
Servicer.
Corresponding Upper-Tier Class, Classes or Component: As to the
following Uncertificated Middle-Tier Interests, the Corresponding Upper-Tier
Class, Classes or Component, as follows:
Uncertificated Corresponding Upper-Tier
Middle-Tier Interest Class, Classes or Component
---------------------------- ----------------------------------------------
Class 1-A-M1 Interest Class 1-A-1 and Class 1-A-2 Certificates
Class 1-A-M3 Interest Class 1-A-3, Class 1-A-4, Class 1-A-5, Class
1-A-6, Class 1-A-7 and Class 1-A-8 Certificates
Class 1-MIO Interest Class 1-IO Certificates
Class 1-MPO Interest Class 1-PO Component
Class 1-A-MUR Interest Class 1-A-R Certificate
Class 2-A-M1 Interest Class 2-A-1 and Class 2-A-2 Certificates
Class 2-A-M3 Interest Class 2-A-3, Class 2-A-4, Class 2-A-5, Class
2-A-6 and Class 2-A-7 Certificates
Class 2-A-M8 Interest Class 2-A-8 Certificates
Class 2-MIO Interest Class 2-IO Component
Class 2-MPO Interest Class 2-PO Component
Class 3-A-M1 Interest Class 3-A-1 Certificates
Class 3-MIO Interest Class 3-IO Component
Class 3-MPO Interest Class 3-PO Component
Class 4-A-M1 Interest Class 4-A-1 Certificates
Class 4-MIO Interest Class 4-IO Component
Class 4-MPO Interest Class 4-PO Component
Class B-M1 Interest Class B-1 Certificates
Class B-M2 Interest Class B-2 Certificates
Class B-M3 Interest Class B-3 Certificates
Class B-M4 Interest Class B-4 Certificates
Class B-M5 Interest Class B-5 Certificates
Class B-M6 Interest Class B-6 Certificates
Counterparty: Bank of America, National Association.
Custodial Agreement: The Custodial Agreement, dated December 28,
2005, among the Custodian, the Seller, the Servicer and the Trustee, which
agreement is attached hereto as Exhibit Q, as the same may be amended or
modified from time to time in accordance with the terms thereof.
Custodian: SunTrust Bank, or its successor in interest under the
Custodial Agreement.
Customary Servicing Procedures: With respect to (i) the Servicer,
procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located and (ii) the Master Servicer, those master servicing procedures that
constitute customary and usual standards of practice of prudent mortgage loan
master servicers.
Cut-off Date: December 1, 2005.
Cut-off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-off Date Principal Balances of the Mortgage Loans in such
Loan Group which is $198,846,400.25 for Loan Group 1, $232,077,824.78 for Loan
Group 2, $130,423,854.87 for Loan Group 3 and $126,830,652.67 for Loan Group 4.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer of such
Mortgage Loan is pursuing an appeal of the court order giving rise to any such
modification and (b)(1) such Mortgage Loan is not in default with respect to
payment due thereunder in accordance with the terms of such Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly Payments are being advanced by the
Servicer, the Master Servicer or the Trustee, as applicable, in accordance with
the terms of such Mortgage Loan as in effect on the Cut-off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer, the
Master Servicer or the Trustee, as applicable, in accordance with the terms of
such Mortgage Loan as in effect on the Cut-off Date.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which
is Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The
Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date, as
defined in the Servicing Agreement.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan,
Group 2 Discount Mortgage Loan, Group 3 Discount Mortgage Loan or Group 4
Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in
January 2006 (or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan,
the first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee, the Securities Administrator and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company (including the Trustee and the
Securities Administrator), acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee or the Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class B-4, Class B-5 or
Class B-6 Certificates.
Escrow Account: As defined in Section 3.08.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Funds: With respect to (1) the Class 1-A-1 Reserve Fund and
for any Distribution Date, the amount by which (a) the Class 1-A-1 Yield
Maintenance Agreement Payments for prior Distribution Dates exceed (b) the
amount actually paid from the Class 1-A-1 Reserve Fund with respect to (i) the
Class 1-A-1 Yield Maintenance Amounts for such prior Distribution Dates and (ii)
the Class 1-A-1 Yield Maintenance Amount Shortfalls for such prior Distribution
Dates and (2) the Class 2-A-1 Reserve Fund and for any Distribution Date, the
amount by which (a) the Class 2-A-1 Yield Maintenance Agreement Payments for
prior Distribution Dates exceed (b) the amount actually paid from the Class
2-A-1 Reserve Fund with respect to (i) the Class 2-A-1 Yield Maintenance Amounts
for such prior Distribution Dates and (ii) the Class 2-A-1 Yield Maintenance
Amount Shortfalls for such prior Distribution Dates.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iv), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Final Distribution Date: The Distribution Date on which the
final distribution in respect of the Certificates will be made pursuant to
Section 10.01.
Financial Market Service: Bloomberg Financial Service and any
other financial information provider designated by the Depositor by written
notice to the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
Form 10-K: As defined in Section 3.22.
Fractional Interest: As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of (i) the right of the Class 1-A-1 Certificates to receive amounts
from the Class 1-A-1 Reserve Fund, (ii) the right of the Class 2-A-1
Certificates to receive amounts from the Class 2-A-1 Reserve Fund, (iii) the
Class 1-A-1 Yield Maintenance Agreement and the Class 1-A-1 Reserve Fund and
(iv) the Class 2-A-1 Yield Maintenance Agreement and the Class 2-A-1 Reserve
Fund.
Group: Any of Group 1, Group 2, Group 3 or Group 4.
Group 1: The Group 1 Senior Certificates and the Class 1-PO
Component.
Group 1 Discount Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 5.750% per
annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
5.750% per annum.
Group 1 Priority Amount: As to any Distribution Date, the lesser of
(i) the aggregate Class Certificate Balance of the Class 1-A-3 and Class 1-A-4
Certificates and (ii) the product of (a) the Non-PO Principal Amount for Loan
Group 1, (b) the Shift Percentage and (c) the Group 1 Priority Percentage.
Group 1 Priority Percentage: As to any Distribution Date, the
percentage equivalent (carried to six places rounded up) of a fraction the
numerator of which is the aggregate Class Certificate Balance of the Class 1-A-3
and Class 1-A-4 Certificates immediately prior to such date and the denominator
of which is the Pool Stated Principal Balance (Non-PO Portion) for Loan Group 1
immediately prior to such date.
Group 1 Senior Certificates: The Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class
1-IO and Class 1-A-R Certificates.
Group 2: The Group 2 Senior Certificates, the Class 2-IO
Component and the Class 2-PO Component.
Group 2 Discount Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 5.857% per
annum.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
5.857% per annum.
Group 2 Priority Amount: As to any Distribution Date, the lesser of
(i) the aggregate Class Certificate Balance of the Class 2-A-3 and Class 2-A-4
Certificates and (ii) the product of (a) the Non-PO Principal Amount for Loan
Group 2, (b) the Shift Percentage and (c) the Group 2 Priority Percentage.
Group 2 Priority Percentage: As to any Distribution Date, the
percentage equivalent (carried to six places rounded up) of a fraction the
numerator of which is the aggregate Class Certificate Balance of the Class 2-A-3
and Class 2-A-4 Certificates immediately prior to such date and the denominator
of which is the Pool Stated Principal Balance (Non-PO Portion) for Loan Group 2
immediately prior to such date.
Group 2 Senior Certificates: The Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-6, Class 2-A-7 and Class 2-A-8
Certificates.
Group 3: The Group 3 Senior Certificates, the Class 3-IO
Component and the Class 3-PO Component.
Group 3 Discount Mortgage Loan: Any Group 3 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 6.500% per
annum.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Premium Mortgage Loan: Any Group 3 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
6.500% per annum.
Group 3 Senior Certificates: The Class 3-A-1 Certificates.
Group 4: The Group 4 Senior Certificates, the Class 4-IO
Component and the Class 4-PO Component.
Group 4 Discount Mortgage Loan: Any Group 4 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 6.500% per
annum.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Premium Mortgage Loan: Any Group 4 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
6.500% per annum.
Group 4 Senior Certificates: The Class 4-A-1 Certificates.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the Trustee, the
Securities Administrator, the Master Servicer and the Servicer, (ii) does not
have any direct financial interest or any material indirect financial interest
in the Depositor, the Trustee, the Securities Administrator, the Master Servicer
or the Servicer or in an affiliate of any of them, and (iii) is not connected
with the Depositor, the Trustee, the Securities Administrator, the Master
Servicer or the Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO
Certificates), the Class Certificate Balance set forth in the Preliminary
Statement. The Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO Certificates
are Interest Only Certificates and have no Initial Class Certificate Balance.
Initial Component Balance: As to each Class PO Component, the
Component Balance set forth in the Preliminary Statement.
Initial Notional Amount: As to each Class of Interest Only
Certificates, the Notional Amount set forth in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any Primary Mortgage Insurance Policy or any other insurance
policy (including any policy covering any Mortgage Loan or Mortgaged Property,
including without limitation, any hazard insurance policy required pursuant to
Section 3.12, any title insurance policy described in Section 2.01 and any
Federal Housing Administration insurance policies and Department of Veterans
Affairs insurance policies), including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and
each Class of interest-bearing Certificates (other than the Class 1-A-1,
Class 1-A-2, Class 2-A-1, Class 2-A-2 and Class CB-IO Certificates) and each
Class IO Component, the period from and including the first day of the
calendar month preceding the calendar month of such Distribution Date to but
not including the first day of the calendar month of such Distribution Date.
As to any Distribution Date and the Class 1-A-1, Class 1-A-2, Class 2-A-1 and
Class 2-A-2 Certificates, the period from and including the 25th day of the
calendar month preceding the calendar month in which such Distribution Date
occurs and ending on the 24th day of the calendar month in which such
Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class (other than the Class CB-IO Certificates) and each Class
IO Component, the sum of (i) the Accrued Certificate Interest or Accrued
Component Interest, subject to reduction pursuant to Section 5.02(c) and (ii)
any Class Unpaid Interest Shortfall for such Class or Component Unpaid Interest
Shortfall for such Component.
Interest Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The Class 1-A-2,
Class 1-IO, Class 2-A-2 and Class CB-IO Certificates are the only Classes of
Interest Only Certificates.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Securities Administrator in accordance with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open for
dealing in foreign currency and exchange in London, England and the City of New
York.
LIBOR Certificates: Any of the Class 1-A-1, Class 1-A-2, Class 2-A-1
or Class 2-A-2 Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with the Servicing Agreement) that it has
received all proceeds it expects to receive in connection with the liquidation
of such Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3 or
Loan Group 4.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at
origination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Losses: As defined in Section 5.10(a).
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account (other than amounts held in respect
of the Middle-Tier Certificate Sub-Account or the Upper-Tier Certificate
Sub-Account), the insurance policies, if any, relating to a Mortgage Loan and
property which secured a Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure.
Master Servicer: Xxxxx Fargo Bank, N.A., and its
successors-in-interest and, if a successor master servicer is appointed
hereunder, such successor, as master servicer.
Master Servicer Custodial Account: The Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.09 in the name of the
Master Servicer for the benefit of the Certificateholders and designated "Xxxxx
Fargo Bank, N.A., as Master Servicer, in trust for the registered holders of
SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through Certificates, Series 2005-1F."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in
Section 3.22(c).
Master Servicer's Certificate: The monthly report required by
the Master Servicer pursuant to Section 4.01.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished to
the Securities Administrator by the Master Servicer, as such list may from time
to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
(including attorney's fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or successor
master servicer to correct any errors or insufficiencies in the master servicing
data or servicing data or otherwise to enable the Trustee or a successor master
servicer to master service or service, as the case may be, the applicable
Mortgage Loans properly and effectively.
MERS: The Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any MOM Loan or any other Mortgage Loan as to
which MERS is (or is intended to be) the mortgagee of record and as to which a
MIN has been assigned.
MIN: A MERS Mortgage Identification Number assigned to a Mortgage
Loan registered under MERS.
MOM Loan: A Mortgage Loan where the related Mortgage names MERS as
the original mortgagee thereof, as to which a MIN has been assigned, and which
Mortgage has not been assigned to any other person.
Middle-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Middle-Tier Distribution Amount: As defined in Section 5.02(a).
Middle-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed held in the Middle-Tier Certificate
Sub-Account.
Monthly Form 8-K: As defined in Section 3.22.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 28, 2005, among STAF, as seller, the Depositor, as
purchaser, and SunTrust Bank.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Estate and from time to time subject to this Agreement, attached hereto as
Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0 and Exhibit D-4, setting forth the
following information with respect to each Mortgage Loan: (i) the Mortgage Loan
identifying number; (ii) a code indicating whether the Mortgaged Property is
owner-occupied; (iii) the property type for each Mortgaged Property; (iv) the
original months to maturity or the remaining months to maturity from the Cut-off
Date; (v) the Loan-to-Value Ratio at origination; (vi) the Mortgage Interest
Rate; (vii) the date on which the first Monthly Payment was due on the Mortgage
Loan, and, if such date is not the Due Date currently in effect, such Due Date;
(viii) the stated maturity date; (ix) the amount of the Monthly Payment as of
the Cut-off Date; (x) the paid-through date; (xi) the original principal amount
of the Mortgage Loan; (xii) the principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date, after application of payments of
principal due on or before the Cut-off Date, whether or not collected, and after
deduction of any payments collected of scheduled principal due after the Cut-off
Date; (xiii) a code indicating the purpose of the Mortgage Loan; (xiv) a code
indicating the documentation style; (xv) [RESERVED]; (xvi) the Appraised Value;
and (xvii) the closing date of the Mortgage Loan. With respect to the Mortgage
Loans in the aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the Cut-off Date: (i) the number of Mortgage Loans; (ii) the
current aggregate outstanding principal balance of the Mortgage Loans; (iii) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (iv) the
weighted average months to maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Cooperative Stock or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the calendar month preceding the month of such Distribution Date reduced by the
Servicing Fee Rate for such Mortgage Loan.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and the denominator
of which is 5.750% for each Group 1 Discount Mortgage Loan, 5.857% for each
Group 2 Discount Mortgage Loan, 6.500% for each Group 3 Discount Mortgage Loan
and 6.500% for each Group 4 Discount Mortgage Loan. As to any Mortgage Loan that
is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date and Loan Group,
the sum of (i) the sum of the applicable Non-PO Percentage of (a) the principal
portion of each Monthly Payment due on each Mortgage Loan in such Loan Group on
the related Due Date, (b) the Stated Principal Balance, as of the date of
repurchase, of (i) each Mortgage Loan in such Loan Group that was repurchased by
the Servicer pursuant to the Servicing Agreement as of such Distribution Date,
(ii) each Mortgage Loan in such Loan Group repurchased by the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its obligations under
the Mortgage Loan Purchase Agreement) pursuant to the Mortgage Loan Purchase
Agreement or a Purchase Obligation as of such Distribution Date, (iii) each
Mortgage Loan in such Loan Group repurchased by the Depositor pursuant to
Section 2.04 or (iv) each Mortgage Loan in such Loan Group purchased by the
Servicer pursuant to Section 10.01, (c) any Substitution Adjustment Amount in
connection with a Defective Mortgage Loan in such Loan Group received during the
calendar month preceding the month of such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received by the
Servicer during the calendar month preceding the month of such Distribution
Date, (e) with respect to each Mortgage Loan in such Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the amount of Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received by the Servicer with respect to such
Mortgage Loan during such period and (f) with respect to each Mortgage Loan, all
Principal Prepayments on the Mortgage Loans in such Loan Group received by the
Servicer during the calendar month preceding the month of such Distribution
Date; and (ii) the Non-PO Recovery with respect to such Loan Group for such
Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group, the
amount of all Recoveries received with respect to such Loan Group during the
calendar month preceding the month of such Distribution Date less the Class PO
Recovery with respect to such Loan Group for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
the aggregate Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the Servicer will not or, in
the case of a proposed Advance, would not be ultimately recoverable from the
related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or other
recoveries in respect of the related Mortgage Loan.
Notional Amount: With respect to (a) the Class 1-A-2 Certificates
and any date of determination, the Class 1-A-2 Notional Amount, (b) the Class
1-IO Certificates and any date of determination, the Class 1-IO Notional Amount,
(c) the Class 2-A-2 Certificates and any date of determination, the Class 2-A-2
Notional Amount and (d) the Class CB-IO Certificates and any date of
determination, the Class CB-IO Notional Amount.
Offered Certificates: The Senior, Class B-1, Class B-2 and
Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the Master
Servicer, as the case may be, and delivered to the Trustee or the Securities
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee if such opinion is delivered to the Trustee, or acceptable to the
Securities Administrator if such opinion is delivered to the Securities
Administrator, who may be counsel for the Depositor or the Master Servicer,
except that any opinion of counsel relating to the qualification of the Trust
Estate as three separate REMICs or compliance with the REMIC Provisions must be
an opinion of Independent counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 3.61%
Class B-2 2.41%
Class B-3 1.71%
Class B-4 1.00%
Class B-5 0.40%
Class B-6 0.00%
Original Subordinate Certificate Balance: $49,893,758.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full, which did not become a
Liquidated Mortgage Loan prior to such Due Date and which was not purchased from
the Trust prior to such Due Date pursuant to Sections 2.02 or 2.04.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing Certificates
and each interest-bearing Component, the per annum rate set forth or described
in the Preliminary Statement.
Payahead Amount: As to any Distribution Date and Mortgage Loan,
early prepayments of scheduled installments of principal and interest made by a
Mortgagor during the calendar month preceding the month of such Distribution
Date that are intended by such Mortgagor to be applied on subsequent Due Dates.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate (or the initial
notional amount for the Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO
Certificates) by the Initial Class Certificate Balance or Initial Notional
Amount, as applicable, of the Class of which such Certificate is a part.
Periodic Advance: The meaning given to the term "Monthly Advance" in
the Servicing Agreement.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, Xxxxxxx Mac, Xxxxxx Xxx or any agency or instrumentality of
the United States when such obligations are backed by the full faith and
credit of the United States; provided that such obligations of Xxxxxxx Mac
or Xxxxxx Xxx shall be limited to senior debt obligations and mortgage
participation certificates other than investments in mortgage-backed or
mortgage participation securities with yields evidencing extreme
sensitivity to the rate of principal payments on the underlying mortgages,
which shall not constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "P-1" by Moody's and "A-1+" by S&P;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than 365
days or a remaining maturity of more than 30 days) denominated in United
States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof,
rated not lower than "P-1" by Moody's and "A-1+" by S&P;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof which is rated not lower than "P-1" by Moody's
and "A-1+" by S&P;
(v) investments in money market funds (including funds of the
Securities Administrator or its affiliates, or funds for which an
affiliate of the Securities Administrator acts as advisor, as well as
funds for which the Securities Administrator and its affiliates may
receive compensation) rated "Aaa" by Moody's and "AAAm G" by S&P or
otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained by the
Master Servicer or Securities Administrator, as the case may be, will not
affect the qualification of the Trust Estate as three REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person, and (vi) any other Person so designated by the Master
Servicer based on an Opinion of Counsel to the effect that any transfer to such
Person may cause the Trust or any other Holder of a Residual Certificate to
incur tax liability that would not be imposed other than on account of such
transfer. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class B-4, Class B-5 and
Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the aggregate of (A) the interest
portion of any Monthly Payment on a Mortgage Loan in such Loan Group and the
principal portion of any Monthly Payment on a Mortgage Loan in such Loan Group
due on the Due Date in the month in which such Distribution Date occurs and
which is received prior to the related Determination Date and (B) all Periodic
Advances made by the Servicer (or the Master Servicer or the Trustee, as
applicable) in respect of such Loan Group and payments of Compensating Interest
allocable to such Loan Group made by the Servicer in respect of such Loan Group
and such Distribution Date deposited to the Master Servicer Custodial Account
pursuant to Section 3.09(d)(vi); (ii) all Liquidation Proceeds (other than
Excess Proceeds) received on the Mortgage Loans in such Loan Group during the
calendar month preceding the month of such Distribution Date and deposited to
the Master Servicer Custodial Account pursuant to Section 3.09(d)(iii); (iii)
all Principal Prepayments received on the Mortgage Loans in such Loan Group
during the calendar month preceding the month of such Distribution Date and
deposited to the Master Servicer Custodial Account pursuant to Section
3.09(d)(i) during such period; (iv) in connection with any Mortgage Loans that
are Defective Mortgage Loans in such Loan Group, the aggregate of the Purchase
Prices and Substitution Adjustment Amounts remitted on the related Remittance
Date pursuant to Section 3.09(d)(vii); (v) any other amounts in the Master
Servicer Custodial Account deposited therein pursuant to Section 3.09(d)(iv),
(v), (viii), (ix) and (x) in respect of such Distribution Date and such Loan
Group; (vi) any Reimbursement Amount required to be included pursuant to Section
5.02(a); and (vii) any Non-PO Recovery with respect to such Distribution Date
and Loan Group over (b) any amounts permitted to be withdrawn from the Master
Servicer Custodial Account pursuant to clauses (i) through (viii), inclusive, of
Section 3.11(a) in respect of such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans in such Loan
Group that were Outstanding Mortgage Loans immediately following the Due Date in
the month preceding the month in which such Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group, the sum of the product, for each Mortgage Loan
of such Loan Group, of (a) the Non-PO Percentage of such Mortgage Loan
multiplied by (b) the Stated Principal Balance of such Mortgage Loan that was an
Outstanding Mortgage Loan immediately following the Due Date in the month
preceding the month in which such Distribution Date occurs.
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group, (i)
the sum of the applicable PO Percentage of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan in such Loan Group on the related Due
Date; (b) the Stated Principal Balance, as of the date of repurchase, of (i)
each Mortgage Loan in such Loan Group that was repurchased by the Servicer
pursuant to the Servicing Agreement as of such Distribution Date, (ii) each
Mortgage Loan in such Loan Group repurchased by the Seller (or SunTrust Bank, to
the extent the Seller fails to perform its obligations under the Mortgage Loan
Purchase Agreement) pursuant to the Mortgage Loan Purchase Agreement or a
Purchase Obligation as of such Distribution Date, (iii) each Mortgage Loan in
such Loan Group repurchased by the Depositor pursuant to Section 2.04, or (iv)
each Mortgage Loan in each Loan Group purchased by the Servicer pursuant to
Section 10.01; (c) any Substitution Adjustment Amount in connection with any
Defective Mortgage Loan in such Loan Group received with respect to such
Distribution Date; (d) any Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans in such Loan Group that are not yet Liquidated
Mortgage Loans received by the Servicer during the calendar month preceding the
month of such Distribution Date; (e) with respect to each Mortgage Loan in such
Loan Group that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the amount of Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal received by the
Servicer with respect to such Mortgage Loan during such period; and (f) all
Principal Prepayments on the Mortgage Loans in such Loan Group received by the
Servicer during the calendar month preceding the month of such Distribution
Date; and (ii) the Class PO Recovery with respect to such Loan Group for such
Distribution Date.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan, Group 2
Premium Mortgage Loan, Group 3 Premium Mortgage Loan or Group 4 Premium Mortgage
Loan.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding the month of such Distribution Date, the amount, if any, by
which one month's interest at the related Mortgage Interest Rate (net of the
Servicing Fee Rate) on such Principal Prepayment exceeds the amount of interest
paid in connection with such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to Xxxxxx Xxx or
Xxxxxxx Mac.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class X-PO
Certificates are the only Principal Only Certificates.
Principal Prepayment: With respect to each Mortgage Loan, any
payment or other recovery of principal on a Mortgage Loan (other than
Liquidation Proceeds or Payaheads) which is received in advance of its scheduled
Due Date and is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amounts allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amounts for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Purchase Obligation: An obligation of the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its obligations under
the Mortgage Loan Purchase Agreement) or the Depositor to purchase Mortgage
Loans under the circumstances and in the manner provided in Section 2.02 or
2.04.
Purchase Price: With respect to each Mortgage Loan that was a
Defective Mortgage Loan repurchased on any date pursuant to Sections 2.02 or
2.04, an amount equal to the sum of (i) the Stated Principal Balance of the
Mortgage Loan, (ii) interest on such Stated Principal Balance at the Mortgage
Interest Rate from the date on which interest has last been paid and distributed
through the last day of the month in which such repurchase takes place and (iii)
any costs and damages incurred by the Trust in connection with any violation by
such repurchased Mortgage Loan of any predatory or abusive lending law, less (x)
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the Servicer Custodial Account for distribution in the month
of repurchase and (y) if the Person repurchasing such Mortgage Loan is servicing
such Mortgage Loan under the Servicing Agreement, the Servicing Fee for such
Mortgage Loan.
Rate Determination Date: As to any Class of LIBOR Certificates, the
second LIBOR Business Day prior to the beginning of the applicable Interest
Accrual Period for such Class and such Distribution Date.
Rating Agency: Either of Xxxxx'x and S&P. If either such
organization or a successor is no longer in existence, "Rating Agency" shall be
such nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee, the Master Servicer and the Securities Administrator.
References herein to a given rating or rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of such
Cooperative Loan.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1, for Loan Group 2,
Group 2, for Loan Group 3, Group 3 and for Loan Group 4, Group 4.
Related Loan Group: For Group 1, Loan Group 1, for Group 2, Loan
Group 2, for Group 3, Loan Group 3 and for Group 4, Loan Group 4.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: The 18th day of each month beginning in
January 2006 (or, if such day is not a Business Day, the preceding Business
Day).
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of the Servicer
received in respect of any REO Property (including, without limitation, proceeds
from the rental of the related Mortgaged Property) which are received prior to
the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer
servicing the related Mortgage Loan on behalf of the Trust through foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, substantially in the form attached hereto as Exhibit
E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Reserve Fund: Either of the Class 1-A-1 Reserve Fund or the
Class 2-A-1 Reserve Fund.
Residual Certificate: The Class 1-A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Securities Administrator: Xxxxx Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities administrator is
appointed hereunder, such successor, as securities administrator.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the originator of
the Cooperative Loan in the related Cooperative Stock.
Seller: SunTrust Asset Funding, LLC, a Delaware limited liability
company, or its successor in interest, as seller of the Mortgage Loans under the
Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class 1-IO,
Class 1-A-R, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5,
Class 2-A-6, Class 2-A-7, Class 2-A-8, Class 3-A-1, Class 4-A-1, Class CB-IO and
Class X-PO Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and Loan
Group, the percentage, carried to six places rounded up, obtained by dividing
(i) the sum of the aggregate Class Certificate Balance of the Senior
Certificates of the Related Group immediately prior to such Distribution Date,
by (ii) the Pool Stated Principal Balance (Non-PO Portion) of such Loan Group
for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group during the five (5) years beginning on the first Distribution Date, 100%.
The Senior Prepayment Percentage for any Loan Group and for any Distribution
Date occurring on or after the fifth anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in the
first (1st) year thereafter, the Senior Percentage for such Loan Group plus 70%
of the Subordinate Percentage for such Loan Group for such Distribution Date;
for any Distribution Date in the second (2nd) year thereafter, the Senior
Percentage for such Loan Group plus 60% of the Subordinate Percentage for such
Loan Group for such Distribution Date; for any Distribution Date in the third
(3rd) year thereafter, the Senior Percentage for such Loan Group plus 40% of the
Subordinate Percentage for such Loan Group for such Distribution Date; for any
Distribution Date in the fourth (4th) year thereafter, the Senior Percentage for
such Loan Group plus 20% of the Subordinate Percentage for such Loan Group for
such Distribution Date; and for any Distribution Date in the fifth (5th) or
later years thereafter, the Senior Percentage for such Loan Group for such
Distribution Date (unless on any of the foregoing Distribution Dates, the Total
Senior Percentage exceeds the initial Total Senior Percentage, in which case the
Senior Prepayment Percentage for each Loan Group for such Distribution Date will
once again equal 100%). Notwithstanding the foregoing, no decrease in the Senior
Prepayment Percentage for either Loan Group will occur unless both of the Senior
Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and Loan Group, the sum of (i) the Senior Percentage for such Loan Group of the
applicable Non-PO Percentage of the amounts described in clauses (i)(a) through
(d) of the definition of "Non-PO Principal Amount" for such Distribution Date
and Loan Group and (ii) the Senior Prepayment Percentage for such Loan Group of
(1) the applicable Non-PO Percentage of the amounts described in clauses (i)(e)
and (f) and (2) the amount described in clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and as to
which any decrease in the Senior Prepayment Percentage for any Loan Group
applies, (i) the outstanding principal balance of all Mortgage Loans (including,
for this purpose, any Mortgage Loans in foreclosure, any REO Property and any
Mortgage Loan for which the Mortgagor has filed for bankruptcy after the Closing
Date) delinquent 60 days or more (averaged over the preceding six month period),
as a percentage of the aggregate Class Certificate Balance of the Subordinate
Certificates, is not equal to or greater than 50% or (ii) cumulative Realized
Losses with respect to the Mortgage Loans as of the applicable Distribution Date
do not exceed the percentages of the Original Subordinate Certificate Balance
set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
---------------------------------- --------------------
January 2011 through December 2011 30%
January 2012 through December 2012 35%
January 2013 through December 2013 40%
January 2014 through December 2014 45%
January 2015 and thereafter 50%
Servicer: SunTrust Mortgage, in its capacity as the servicer of
the Mortgage Loans, or any successor servicer appointed as herein provided.
Servicer Custodial Account: The separate account created and
maintained by the Servicer pursuant to the Servicing Agreement.
Servicing Advance: The meaning given to the term "Servicing
Advances" in the Servicing Agreement.
Servicing Agreement: The Seller's Purchase, Warranties and Servicing
Agreement, dated as of November 1, 2005, between STAF, as purchaser and SunTrust
Mortgage, as seller and servicer.
Servicing Fee: With respect to each Mortgage Loan, 0.250% per
annum.
Servicing Fee Rate: With respect to each Mortgage Loan, as
defined in the Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, as defined
in the Servicing Agreement.
Servicing Officer: As defined in the Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the
Master Servicer or the Trustee, as applicable, related to any termination of the
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Master Servicer or the Trustee, as applicable, with respect to
the Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by the Servicer and (ii) any costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the Master Servicer or the Trustee, as
applicable, to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Master Servicer or the Trustee, as applicable, to
service the Mortgage Loans properly and effectively).
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In Shift Percentage
---------------------------------------------- ---------------------
January 2006 through December 2010 0%
January 2011 through December 2011 30%
January 2012 through December 2012 40%
January 2013 through December 2013 60%
January 2014 through December 2014 80%
January 2015 and thereafter 100%
Similar Law: As defined in Section 6.02(e).
STAF: SunTrust Asset Funding, LLC.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio between the principal balances of the Class 1-LS Interest, Class 2-LS
Interest, Class 3-LS Interest and Class 4-LS Interest equal to the ratio among
the Group Subordinate Amounts of Loan Group 1, Loan Group 2, Loan Group 3 and
Loan Group 4.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group, 100% minus the Senior Percentage for such Loan Group for such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and Loan Group, 100% minus the Senior Prepayment Percentage for such Loan
Group and such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i) the
Subordinate Percentage for such Loan Group of the applicable Non-PO Percentage
of the amounts described in clauses (i)(a) through (d) of the definition of
"Non-PO Principal Amount" for such Distribution Date and Loan Group and (ii) the
Subordinate Prepayment Percentage for such Loan Group of the applicable Non-PO
Percentage of the amounts described in clauses (i)(e)and (f) and (2) the amount
described in clause (ii) of the definition of "Non-PO Principal Amount" for such
Distribution Date and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of the Stated
Principal Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage
Interest Rate not less than, and not more than 2% greater than that of the
Defective Mortgage Loan; (iii) be of the same type as the Defective Mortgage
Loan, (iv) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan, (v) have a credit score not less than that of the Defective
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and not
more than one (1) year less than) that of the Defective Mortgage Loan; (vii)
have the same lien priority as the Defective Mortgage Loan; and (viii) comply
with each Mortgage Loan representation and warranty set forth in the Mortgage
Loan Purchase Agreement, the Servicing Agreement and this Agreement. More than
one Substitute Mortgage Loan may be substituted for a Defective Mortgage Loan if
such Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
SunTrust Bank: SunTrust Bank, a Georgia banking corporation.
SunTrust Mortgage: SunTrust Mortgage, Inc., or its successor in
interest.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Total Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing (x) the sum of
the Class Certificate Balance of the Group 1 Senior Certificates, the Group 2
Senior Certificates, the Group 3 Senior Certificates and the Group 4 Senior
Certificates by (y) the aggregate Pool Stated Principal Balance (Non-PO Portion)
for all Loan Groups with respect to such Distribution Date.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named the
"SunTrust Alternative Loan Trust, Series 2005-1F."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to a portion of which three REMIC elections are to be made, such
entire Trust Estate consisting of: (i) such Mortgage Loans as from time to time
are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee's rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and any
proceeds thereof, (iv) amounts in the Reserve Funds, (v) the Depositor's rights
as assignee of the Seller with respect to the Seller's rights under the
Servicing Agreement and the Mortgage Loan Purchase Agreement (including any
security interest created thereby), (vi) the Securities Administrator's rights
under the Yield Maintenance Agreements and (vii) the Servicer Custodial Account,
the Master Servicer Custodial Account, the Certificate Account and the Reserve
Funds and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Middle-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 1-LPO Interest, Class 1-LIO
Interest, Class 2-L Interest, Class 2-LS Interest, Class 2-LPO Interest, Class
2-LIO Interest, Class 3-L Interest, Class 3-LS Interest, Class 3-LPO Interest,
Class 3-LIO Interest, Class 4-L Interest, Class 4-LS Interest, Class 4-LPO
Interest and Class 4-LIO Interest are Uncertificated Lower-Tier Interests.
Uncertificated Middle-Tier Interest: A regular interest in the
Middle-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class 1-A-M1 Interest, Class 1-A-M3 Interest, Class 1-MIO Interest, Class
1-MPO Interest, Class 1-A-MUR Interest, Class 2-A-M1 Interest, Class 2-A-M3
Interest, Class 2-A-M8 Interest, Class 2-MIO Interest, Class 2-MPO Interest,
Class 3-A-M1 Interest, Class 3-MIO Interest, Class 3-MPO Interest, Class 4-A-M1
Interest, Class 4-MIO Interest, Class 4-MPO Interest, Class B-M1 Interest, Class
B-M2 Interest, Class B-M3 Interest, Class B-M4 Interest, Class B-M5 Interest and
Class B-M6 Interest are Uncertificated Middle-Tier Interests.
Undercollateralized Amount: As defined in Section 5.02.
Undercollateralized Group: As defined in Section 5.02.
Uninsured Cause: Any cause of damage to a Mortgaged Property, the
cost of the complete restoration of which is not fully reimbursable under the
hazard insurance policies required to be maintained pursuant to Section 3.12.
Upper-Tier Certificate Sub-Account: The deemed sub-account of the
Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Middle-Tier Interests and such
amounts as shall from time to time be deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holder of
the Residual Certificate, (b) 1% of all Voting Rights shall be allocated to the
Holders of the Class 1-A-2 Certificates, (c) 1% of all Voting Rights shall be
allocated to the Holders of the Class 1-IO Certificates, (d) 1% of all Voting
Rights shall be allocated to the Holders of the Class 2-A-2 Certificates, (e) 1%
of all Voting Rights shall be allocated to the Holders of the Class CB-IO
Certificates and (f) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
Yield Maintenance Agreement: Either of the Class 1-A-1 Yield
Maintenance Agreement or the Class 2-A-1 Yield Maintenance Agreement.
Yield Maintenance Agreement Payment: Either of the Class 1-A-1
Yield Maintenance Agreement Payment or the Class 2-A-1 Yield Maintenance
Agreement Payment.
Yield Maintenance Amount: Either of the Class 1-A-1 Yield
Maintenance Amount or the Class 2-A-1 Yield Maintenance Amount.
Yield Maintenance Amount Shortfall: Either of the Class 1-A-1
Yield Maintenance Amount Shortfall or the Class 2-A-1 Yield Maintenance
Amount Shortfall.
Section 1.02 Interest Calculations. All calculations of interest will be
made on a 360-day year consisting of twelve (12) 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor, concurrently
with the execution and delivery hereof, hereby sells, transfers, assigns, sets
over and otherwise conveys to the Trustee on behalf of the Trust for the benefit
of the Certificateholders, without recourse, all the right, title and interest
of the Depositor in and to the Mortgage Loans and the related Mortgage Files,
including all interest and principal received on or with respect to the Mortgage
Loans (other than payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date) and the Depositor's rights under
the Mortgage Loan Purchase Agreement, including the rights of the Depositor as
assignee of the Seller with respect to the Seller's rights under the Servicing
Agreement. The foregoing sale, transfer, assignment and set over does not and is
not intended to result in a creation of an assumption by the Trustee of any
obligation of the Depositor or any other Person in connection with the Mortgage
Loans or any agreement or instrument relating thereto, except as specifically
set forth herein. It is agreed and understood by the parties hereto that it is
not intended that any mortgage loan be included in the Trust that is a
"High-Cost Home Loan" as defined in any of (i) the New Jersey Home Ownership Act
effective November 27, 2003, (ii) the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) the Massachusetts Predatory Home Loan Practices
Act effective November 7, 2004 or (iv) the Indiana Home Loan Practices Act,
effective January 1, 2005.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Custodian on behalf of the
Trustee, for the benefit of the Certificateholders, the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of
_______________________, without recourse," with all necessary intervening
endorsements showing a complete chain of endorsements (each such
endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note);
(ii) except as provided below and for each Mortgage Loan that is not
a MERS Mortgage Loan, the original Mortgage with evidence of recording
thereon, or a copy thereof certified by the public recording office in
which such mortgage has been recorded or, if the original Mortgage has not
been returned from the applicable public recording office, a photocopy of
the original Mortgage, together with a certificate of the Servicer
certifying that the original Mortgage has been delivered for recording in
the appropriate public recording office of the jurisdiction in which the
Mortgaged Property is located and in the case of each MERS Mortgage Loan,
the original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM Loan
or if the Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) (A) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, the original Assignment of Mortgage, from the Servicer,
which assignment shall, be in form and substance acceptable for recording,
or a photocopy certified by the Servicer as a true and correct copy of the
original Assignment of Mortgage which has been sent for recordation and
(B) originals of all recorded intervening Assignments of Mortgage, or
copies thereof, certified by the public recording office in which such
Assignments of Mortgage have been recorded showing a complete chain of
title, with evidence of recording thereon, or a copy thereof certified by
the public recording office in which such Assignment of Mortgage has been
recorded or, if the original Assignment of Mortgage has not been returned
from the applicable public recording office, a photocopy of the original
Assignment of Mortgage, together with a certificate of the Seller
certifying that the original Assignment of Mortgage has been delivered for
recording in the appropriate public recording office of the jurisdiction
in which the Mortgaged Property is located;
(iv) originals, or copies thereof certified by the public recording
office in which such documents have been recorded, of each assumption,
extension, modification, written assurance or substitution agreements, if
applicable, or if the original of such document has not been returned from
the applicable public recording office, a photocopy of such original
document together with certificate of the Servicer certifying the original
of such document has been delivered for recording in the appropriate
recording office of the jurisdiction in which the Mortgaged Property is
located;
(v) with respect to Mortgage Loans that are not secured by
Cooperative Stock, the original policy of title insurance, including
riders and endorsements thereto, or if the policy has not yet been issued,
a written commitment or interim binder or preliminary report of title
issued by the title insurance or escrow company;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable title
insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage;
(ix) if the Mortgage Note or Mortgage or any other material document
or instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the original power of attorney or other
instrument that authorized and empowered such person to sign bearing
evidence that such instrument has been recorded, if so required in the
appropriate jurisdiction where the Mortgaged Property is located (or, in
lieu thereof, a duplicate or conformed copy of such instrument, together
with a certificate of receipt from the recording office, certifying that
such copy represents a true and complete copy of the original and that
such original has been or is currently submitted to be recorded in the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located), or if the original power of attorney or
other such instrument has been delivered for recording in the appropriate
public recording office of the jurisdiction in which the Mortgaged
Property is located; and
(x) for each Mortgage Loan secured by Cooperative Stock, the
originals of the following documents or instruments: (A) a copy of the
Cooperative Lease and the assignment of such Cooperative Lease to the
originator of the Mortgage Loan, with all intervening assignments showing
a complete chain of title and an assignment thereof by Seller; (B) the
Cooperative Stock Certificate together with an undated stock power
relating to such stock certificate executed in blank; (C) the Recognition
Agreement in substantially the same form as standard a "AZTECH" form; and
(D) the executed UCC-1 financing statement with evidence of recording
thereon and a filed UCC-3 financing statements.
If the Depositor is unable to deliver or cause the delivery of any original
Mortgage Note due to the loss of such original Mortgage Note, the Depositor may
deliver a copy of such Mortgage Note, together with a lost note affidavit, and
shall thereby be deemed to have satisfied the document delivery requirements of
this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, extension, modification, written assurance or substitution
agreements, if any, or (D) the original policy of title insurance, if any,
(together with all riders thereto), if applicable, satisfying the requirements
of clause (ii), (iii), (iv) or (v) above, respectively, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause (ii),
(iii) or (iv) above, or because the title policy, if applicable, has not been
delivered to any of the Servicer, the Seller or the Depositor, as applicable, by
the applicable title insurer, if any, in the case of clause (v) above, the
Depositor shall promptly deliver or cause to be delivered to the Custodian on
behalf of the Trustee, in the case of clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one (1) year following the Closing Date, unless,
in the case of clause (ii), (iii) or (iv) above, there has been a continuing
delay at the applicable recording office or, in the case of clause (v), there
has been a continuing delay at the applicable insurer and the Depositor has
delivered an Officer's Certificate to such effect to the Trustee. The Depositor
shall forward or cause to be forwarded to the Custodian, on behalf of the
Trustee, (1) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (2) any other documents
required to be delivered by the Depositor, or the Servicer to the Custodian on
the Trustee's behalf. In the event that the original Mortgage is not delivered
and in connection with the payment in full of the related Mortgage Loan the
public recording office requires the presentation of a "lost instruments
affidavit and indemnity" or any equivalent document, because only a copy of the
Mortgage can be delivered with the instrument of satisfaction or reconveyance,
the Depositor shall prepare, execute and deliver or cause to be prepared,
executed and delivered, on behalf of the Trust, such a document to the public
recording office.
With respect to each Mortgage Loan, as promptly as practicable
subsequent to such transfer and assignment, the Master Servicer shall (except
for any MERS Mortgage Loans) enforce the obligations of the Servicer pursuant to
the Servicing Agreement to (I) cause each Assignment of Mortgage to be in proper
form for recording in the appropriate public office for real property records
within the time period required in the Servicing Agreement and (II) if
applicable, at the Depositor's expense, cause to be delivered for recording in
the appropriate public office for real property records the Assignments of the
Mortgages to the Custodian, except that, with respect to any Assignment of a
Mortgage as to which the Servicer has not received the information required to
prepare such assignment in recordable form, the Servicer's obligation to do so
and to deliver the same for such recording shall be as soon as practicable after
receipt of such information and in accordance with the Servicing Agreement.
No recording of an Assignment of Mortgage will be required in a
state if either (i) the Depositor furnishes to the Trustee and the Securities
Administrator an unqualified Opinion of Counsel reasonably acceptable to the
Trustee and the Securities Administrator to the effect that recordation of such
assignment is not necessary under applicable state law to preserve the Trustee's
interest in the related Mortgage Loan against the claim of any subsequent
transferee of such Mortgage Loan or any successor to, or creditor of, the
Depositor or the originator of such Mortgage Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not required by either Rating Agency in
order to obtain the initial ratings on the Certificates on the Closing Date.
Exhibit J attached hereto sets forth the list of all states where recordation is
required by any Rating Agency to obtain the initial ratings of the Certificates.
The Securities Administrator and the Trustee may rely and shall be protected in
relying upon the information contained in such Exhibit J.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Custodian on the Trustee's behalf, will cause the Servicer to remit to the
Master Servicer for deposit in the Master Servicer Custodial Account the portion
of such payment that is required to be deposited in the such account pursuant to
Section 3.09.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. Subject to
the provisions of the following paragraph and pursuant to the Custodial
Agreement, the Custodian will declare that it holds and will hold the documents
referred to in Section 2.01 and the other documents delivered to it constituting
the Mortgage Files, and that it will hold such other assets as are included in
the Trust Estate delivered to it, in trust for the exclusive use and benefit of
all present and future Certificateholders. Upon execution and delivery of this
document, the Trustee shall cause the Custodian to deliver to the Depositor and
the Master Servicer a certification in the form attached hereto as Exhibit K
(the "Initial Certification") to the effect that, except as may be specified in
a list of exceptions attached thereto, such Person has received the original
Mortgage Note relating to each of the Mortgage Loans listed on the Mortgage Loan
Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Custodian, on behalf of the Trustee, will review the Mortgage Files in such
Person's possession, and shall deliver to the Depositor and the Master Servicer
a certification in the form attached hereto as Exhibit L (the "Final
Certification") to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in a list of exceptions
attached to such Final Certification, such Mortgage File contains all of the
items required to be delivered pursuant to Section 2.01(b). In performing any
such review, the Custodian may conclusively rely on the purported genuineness of
any such document and any signature thereon.
If, in the course of such review, the Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01 or is omitted from such Mortgage File or if the Depositor, the
Master Servicer, the Trustee, the Custodian or the Securities Administrator
discovers a breach by the Servicer or the Seller of any representation, warranty
or covenant under the Servicing Agreement or the Mortgage Loan Purchase
Agreement in respect of any Mortgage Loan and such breach materially adversely
affects the value of, or the interest of the Certificateholders in, the related
Mortgage Loan (provided that any such breach that causes the Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code shall be deemed to materially and adversely affect the interests of the
Certificateholders), then such party shall promptly so notify the Master
Servicer, the Seller, the Servicer and the Depositor of such failure to meet the
requirements of Section 2.01 or of such breach and request that the Servicer or
the Seller, as applicable, deliver such missing documentation or cure such
defect or breach within 90 days of its discovery or its receipt of notice of any
such failure to meet the requirements of Section 2.01 or of such breach. If the
Seller or the Servicer, as applicable, does not deliver such missing document or
cure such defect or breach in all material respects during such period, the
Trustee shall enforce the Servicer's or Seller's obligation (or SunTrust Bank's
obligation, to the extent the Seller fails to perform its obligations under the
Mortgage Loan Purchase Agreement), as the case may be, under the Servicing
Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the
Servicer or Seller (or SunTrust Bank, to the extent the Seller fails to perform
its obligations under the Mortgage Loan Purchase Agreement), as applicable, to
either (a) substitute for the related Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished in the manner and subject to the
conditions set forth below or (b) purchase such Mortgage Loan from the Trust at
the Purchase Price for such Mortgage Loan; provided, however, that in no event
shall such a substitution occur more than two years from the Closing Date;
provided, further, that such substitution or repurchase must occur within 90
days of when such defect was discovered if such defect will cause the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to this Section 2.02 shall be made more than 90 days after
the Closing Date unless the Depositor delivers to the Securities Administrator
an Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
the Trustee, the Securities Administrator or the Trust Estate, addressed to the
Trustee and the Securities Administrator, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
any REMIC created hereunder or contributions after the Start-up Day, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
It is understood that the scope of the Custodian's review of the
Mortgage Files is limited solely to confirming that the documents listed in
Section 2.01 have been received and further confirming that any and all
documents delivered pursuant to Section 2.01 appear on their face to have been
executed and relate to the Mortgage Loans identified in the Mortgage Loan
Schedule based solely upon the review of items (i) and (xi) in the definition of
Mortgage Loan Schedule. The Custodian shall not have any responsibility for
determining whether any document is valid and binding, whether the text of any
assignment or endorsement is in proper or recordable form, whether any document
has been recorded in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of the Servicer or the Seller, the Trustee shall enforce the rights of
the Trust under the Servicing Agreement and the Mortgage Loan Purchase Agreement
for the benefit of the Certificateholders. In the event of a breach of the
representations or warranties with respect to the Mortgage Loans set forth in
the Servicing Agreement, the Trustee shall enforce the right of the Trust to be
indemnified for such breach of representation or warranty. In addition, if a
breach of a representation with respect to a Mortgage Loan set forth in clauses
(k) or (o) of Section 3 of the Mortgage Loan Purchase Agreement occurs as a
result of a violation of an applicable predatory or abusive lending law, the
Trustee shall enforce the right of the Trust to reimbursement by the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its obligations under
the Mortgage Loan Purchase Agreement) for all costs or damages incurred by the
Trust as a result of the violation of such law (such amount, the "Reimbursement
Amount"), but in the case of a breach of a representation set forth in clauses
(k) or (o) of paragraph 3 of the Mortgage Loan Purchase Agreement, only to the
extent the Servicer does not so reimburse the Trust. It is understood and agreed
that, except for any indemnification provided in the Servicing Agreement and the
payment of any Reimbursement Amount, the obligation of the Servicer or the
Seller (or SunTrust Bank, to the extent the Seller fails to perform its
obligations under the Mortgage Loan Purchase Agreement) to cure or to repurchase
any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Servicer or the Seller
(or SunTrust Bank, to the extent the Seller fails to perform its obligations
under the Mortgage Loan Purchase Agreement) in respect of such omission, defect
or breach available to the Trustee on behalf of the Certificateholders.
With respect to the representations and warranties relating to the
Mortgage Loans set forth in the Mortgage Loan Purchase Agreement that are made
to the best of the Seller's knowledge or as to which the Seller had no
knowledge, if it is discovered by the Depositor, the Master Servicer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the value of, or the interest
of the Certificateholders in, the related Mortgage Loan then, notwithstanding
the Seller's lack of knowledge with respect to the substance of such
representation or warranty being inaccurate at the time the representation or
warranty was made, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
It is understood and agreed that the representations and warranties
relating to the Mortgage Loans set forth in the Mortgage Loan Purchase Agreement
shall survive delivery of the Mortgage Files to the Custodian on the Trustee's
behalf and shall inure to the benefit of the Certificateholders notwithstanding
any restrictive or qualified endorsement or assignment. It is understood and
agreed that the obligations of the Seller (or SunTrust Bank, to the extent the
Seller fails to perform its obligations under the Mortgage Loan Purchase
Agreement) set forth in this Section 2.02 to cure, substitute for or repurchase
a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement constitute the
sole remedies available to the Certificateholders and to the Trustee on their
behalf respecting a breach of the representations and warranties contained in
the Mortgage Loan Purchase Agreement.
The representations and warranties of the Servicer with respect to
the Mortgage Loans in the Servicing Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the Servicing
Agreement. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty of
the Servicer under the Servicing Agreement and (ii) a representation or warranty
of the Seller under the Mortgage Loan Purchase Agreement, the only right or
remedy of the Trustee or of any Certificateholder shall be the Trustee's right
to enforce the obligations of the Servicer under any applicable representation
or warranty made by it. The Trustee acknowledges that the Seller shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition or
event constituting such breach also constitutes a breach of a representation or
warranty made by the Servicer in the Servicing Agreement, without regard to
whether the Servicer fulfills its contractual obligations in respect of such
representation or warranty. The Trustee further acknowledges that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as set
forth in Section 2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its obligations under
the Mortgage Loan Purchase Agreement) shall deliver to the Custodian, for the
benefit of the Certificateholders, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage (except for any Mortgage which has been recorded in the
name of MERS or its designee), and such other documents and agreements as are
otherwise required by Section 2.01, with the Mortgage Note endorsed and the
Mortgage assigned as required by Section 2.01. No substitution is permitted to
be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to any such Substitute Mortgage Loan in the
month of substitution shall not be part of the Trust Estate. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due for such month on any Defective Mortgage Loan for which the Seller
(or SunTrust Bank, to the extent the Seller fails to perform its obligations
under the Mortgage Loan Purchase Agreement) or the Servicer has substituted a
Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of each Mortgage Loan
that has become a Defective Mortgage Loan and the substitution of the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee and the
Custodian. Upon such substitution of a Mortgage Loan by the Seller (or SunTrust
Bank, to the extent the Seller fails to perform its obligations under the
Mortgage Loan Purchase Agreement) or the Servicer, each Substitute Mortgage Loan
shall be subject to the terms of this Agreement in all respects, the Seller (or
SunTrust Bank, to the extent the Seller fails to perform its obligations under
the Mortgage Loan Purchase Agreement) shall be deemed to have made to the
Trustee with respect to such Substitute Mortgage Loan, as of the date of
substitution, the representations and warranties made pursuant to paragraph 4 of
the Mortgage Loan Purchase Agreement and the Servicer shall be deemed to have
made to the Trustee with respect to such Substitute Mortgage Loan, as of the
date of substitution, the mortgage loan representations and warranties made
pursuant to the Servicing Agreement. Upon any such substitution and the deposit
to the Master Servicer Custodial Account of any required Substitution Adjustment
Amount (as described in the next paragraph) and receipt by the Trustee of a
Request for Release, the Trustee shall direct the Custodian to release the
Mortgage File relating to such Defective Mortgage Loan to the applicable Person
and shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, without recourse, as shall be
necessary to vest title in such Person or its designee to the Trustee's interest
in any Defective Mortgage Loan substituted for pursuant to this Section 2.02.
For any month in which the Seller (or SunTrust Bank, to the extent
the Seller fails to perform its obligations under the Mortgage Loan Purchase
Agreement) or the Servicer substitutes one or more Substitute Mortgage Loans for
one or more Defective Mortgage Loans, the amount (if any) by which the aggregate
principal balance of all such Substitute Mortgage Loans substituted by such
Person in a Loan Group as of the date of substitution is less than the aggregate
Stated Principal Balance of all such Defective Mortgage Loans in a Loan Group
substituted by such Person (after application of the principal portion of the
Monthly Payments due in the month of substitution) (the "Substitution Adjustment
Amount" for such Loan Group) plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Defective Mortgage Loans shall be
remitted by such Person to the Master Servicer for deposit to the Master
Servicer Custodial Account on or before the 18th day of the month succeeding the
calendar month during which the related Mortgage Loan is required to be
purchased or replaced hereunder.
The Custodian shall retain possession and custody of each Mortgage
File in accordance with and subject to the terms and conditions set forth
herein. The Master Servicer shall cause to be promptly delivered to the
Custodian upon the execution or, in the case of documents requiring recording,
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the Master Servicer's possession
from time to time.
The Custodian shall be under no duty or obligation (i) to inspect,
review or examine any such documents, instruments, certificates or other papers
to determine that they are genuine, enforceable, or appropriate for the
represented purpose or that they are other than what they purport to be on their
face or (ii) to determine whether any Mortgage File should include any of the
documents specified in Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In
connection with making the certifications required hereunder, to the extent a
title search or opinion of counsel has been provided in lieu of a title policy
for any Mortgage Loan, the Custodian shall only be responsible for confirming
that a title search or opinion of counsel has been provided for such Mortgage
Loan.
The Securities Administrator is hereby directed to execute and
deliver, on behalf of the Trust, the Yield Maintenance Agreements.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer. (a) The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property securing a
Mortgage Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Master Servicer. The Master Servicer has power and authority to execute
and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Master Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto,
evidences the valid, binding and enforceable obligation of the Master
Servicer, subject to applicable law except as enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Master Servicer to make this
Agreement valid and binding upon the Master Servicer in accordance with
its terms.
(ii) No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Master Servicer is required or, if required,
such consent, approval, authorization or order has been or will, prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer
and will not result in the breach of any term or provision of the charter
or by-laws of the Master Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which the Master Servicer or
its property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Master Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Master Servicer, threatened against the
Master Servicer which, either individually or in the aggregate, would
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Master Servicer, or in
any material impairment of the right or ability of the Master Servicer to
carry on its business substantially as now conducted or which would draw
into question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be taken in connection with the obligations of the
Master Servicer contemplated herein, or which would materially impair the
ability of the Master Servicer to perform under the terms of this
Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans. The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud any of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Custodian and shall inure to the benefit of the Certificateholders,
notwithstanding any restrictive or qualified endorsement or assignment.
Upon discovery by any of the Depositor, the Master Servicer, the
Securities Administrator or the Trustee that any of the representations and
warranties set forth in this Section 2.04 is not accurate (referred to herein as
a "breach") and that such breach materially and adversely affects the value of,
or the interests of the Certificateholders in, the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties; provided that any such breach that causes the Mortgage Loan not to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code shall
be deemed to materially and adversely affect the interests of the
Certificateholders. Within 90 days of its discovery or its receipt of notice of
any such breach, the Depositor shall cure such breach in all material respects
or shall either (i) repurchase the Mortgage Loan or any property acquired in
respect thereof from the Trustee at a price equal to the Purchase Price or (ii)
if within two years of the Closing Date, substitute for such Mortgage Loan in
the manner described in Section 2.02; provided that if the breach would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such repurchase or substitution must occur within 90
days from the date the breach was discovered. The Purchase Price of any
repurchase described in this paragraph and the Substitution Adjustment Amount,
if any shall be remitted to the Master Servicer for deposit to the Master
Servicer Custodial Account. It is understood and agreed that, except with
respect to the second preceding sentence, the obligation of the Depositor to
repurchase or substitute for any Mortgage Loan or Mortgaged Property as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to Certificateholders, or to the Trustee on
behalf of Certificateholders, and such obligation shall survive until
termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The Depositor hereby
designates the Classes of Senior Certificates (other than the Class 1-A-R, Class
CB-IO and Class X-PO Certificates), the Components and the Classes of
Subordinate Certificates as "regular interests" and the Class UR Interest as the
single class of "residual interest" in the Upper-Tier REMIC for the purposes of
Code Sections 860G(a)(1) and 860G(a)(2), respectively. The Depositor hereby
further designates (i) the Uncertificated Middle-Tier Interests as classes of
"regular interests" and the Class MR Interest as the single class of "residual
interest" in the Middle-Tier REMIC and (ii) the Uncertificated Lower-Tier
Interests as classes of "regular interests" and the Class LR Interest as the
single class of "residual interest" in the Lower-Tier REMIC for the purposes of
Code Sections 860G(a)(1) and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each of the Upper-Tier REMIC, the
Middle-Tier REMIC and Lower-Tier REMIC within the meaning of Section 860G(a)(9)
of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest
possible maturity date" of the regular interests in the Upper-Tier REMIC, the
Middle-Tier REMIC and the Lower-Tier REMIC is December 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares that it holds
the Uncertificated Lower-Tier Interests on behalf of the Middle-Tier REMIC and
the Certificateholders and that it holds the Uncertificated Middle-Tier
Interests on behalf of the Upper-Tier REMIC and the Certificateholders and (ii)
has executed and delivered to or upon the order of the Depositor, in exchange
for the Mortgage Loans, Uncertificated Lower-Tier Interests and Uncertificated
Middle-Tier Interests, together with all other assets included in the definition
of "Trust Estate," receipt of which is hereby acknowledged, Certificates in
authorized denominations which, together with the Uncertificated Middle-Tier
Interests and the Uncertificated Lower-Tier Interests, evidence ownership of the
entire Trust Estate.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and on
behalf of the Certificateholders, the Master Servicer shall supervise, monitor
and oversee the obligations of the Servicer to service and administer the
Mortgage Loans in accordance with the terms of the Servicing Agreement and shall
have full power and authority to do any and all things which it may deem
necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with this Agreement, subject to the prior
sentence, and with Customary Servicing Procedures. Furthermore, the Master
Servicer shall oversee and consult with the Servicer as necessary from
time-to-time to carry out the Master Servicer's obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided to
the Master Servicer by the Servicer and shall cause the Servicer to perform and
observe the covenants, obligations and conditions to be performed or observed by
the Servicer under the Servicing Agreement. The Master Servicer shall
independently monitor the Servicer's servicing activities with respect to each
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicer's and the Master Servicer's records, and based on
such reconciled and corrected information, prepare the Master Servicer's
Certificate and any other information and statements required hereunder. The
Master Servicer shall reconcile the results of its Mortgage Loan monitoring with
the actual remittances of the Servicer to the Master Servicer Custodial Account
pursuant to the Servicing Agreement.
Continuously from the date hereof until the termination of the
Trust, the Master Servicer shall enforce the obligations of the Servicer to
collect all payments due under the terms and provisions of the Mortgage Loans
when the same shall become due and payable to the extent such procedures shall
be consistent with the Servicing Agreement.
The relationship of the Master Servicer (and of any successor to the
Master Servicer as master servicer under this Agreement) to the Trustee and the
Securities Administrator under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
Section 3.02 Monitoring of Servicer. (a) The Master Servicer shall be
responsible for reporting to the Trustee, the Securities Administrator and the
Depositor the compliance by the Servicer with its duties under the Servicing
Agreement. In the review of the Servicer's activities, the Master Servicer may
rely upon an officer's certificate of the Servicer with regard to the Servicer's
compliance with the terms of the Servicing Agreement. In the event that the
Master Servicer, in its judgment, determines that the Servicer should be
terminated in accordance with the Servicing Agreement, or that a notice should
be sent pursuant to the Servicing Agreement with respect to the occurrence of an
event that, unless cured, would constitute grounds for such termination, the
Master Servicer shall notify the Depositor, the Securities Administrator and the
Trustee thereof and the Master Servicer shall issue such notice or take such
other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer under the
Servicing Agreement, and shall, in the event that the Servicer fails to perform
its obligations in accordance with the Servicing Agreement, subject to the
preceding paragraph, terminate the rights and obligations of the Servicer
thereunder and act as successor Servicer of the related Mortgage Loans under the
Servicing Agreement or cause the Trustee to enter in to a new Servicing
Agreement with a successor Servicer selected by the Master Servicer; provided,
however, it is understood and acknowledged by the parties hereto that there will
be a period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to such successor Servicer. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
the Servicing Agreement and the pursuit of other appropriate remedies, shall be
in such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer and Trustee, as applicable,
shall pay the costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party whom such enforcement is directed,
provided that the Master Servicer and the Trustee, as applicable, shall not be
required to prosecute or defend any legal action except to the extent that the
Master Servicer or the Trustee, as applicable, shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
or the Trustee, as applicable, related to any termination of the Servicer,
appointment of a successor Servicer or the transfer and assumption of servicing
by the Master Servicer or the Trustee, as applicable, with respect to the
Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an Event of Default
by the Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor Servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor Servicer to service the
Mortgage Loans in accordance with the Servicing Agreement) are not fully and
timely reimbursed by the terminated Servicer, the Master Servicer or the
Trustee, as applicable, shall be entitled to reimbursement of such costs and
expenses from the Master Servicer Custodial Account; provided that if such
Servicing Transfer Costs are ultimately reimbursed by the terminated Servicer,
then the Master Servicer or the Trustee, as applicable, shall remit such amounts
that are reimbursed by the terminated Servicer to the Master Servicer Custodial
Account.
(d) The Master Servicer shall require the Servicer to comply with
the remittance requirements and other obligations set forth in the Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The Master
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons involved in the performance of its obligations as
Master Servicer hereunder. These policies must insure the Master Servicer
against losses resulting from dishonest or fraudulent acts committed by the
Master Servicer's personnel, any employees of outside firms that provide data
processing services for the Master Servicer, and temporary contract employees or
student interns. No provision of this Section 3.03 requiring such fidelity bond
and errors and omissions insurance shall diminish or relieve the Master Servicer
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by Xxxxxx Xxx in the Xxxxxx Mae Servicing Guide
or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' & Servicers' Guide, as amended or
restated from time to time, or in an amount as may be permitted to the Master
Servicer by express waiver of Xxxxxx Xxx or Xxxxxxx Mac. In the event that any
such policy or bond ceases to be in effect, the Master Servicer shall obtain a
comparable replacement policy or bond from an insurer or issuer, meeting the
requirements set forth above as of the date of such replacement.
Section 3.04 Access to Certain Documentation. The Master Servicer shall
provide, and the Master Servicer shall cause the Servicer to provide in
accordance with the Servicing Agreement, to the OCC, the OTS, the FDIC and to
comparable regulatory authorities supervising Holders of Certificates and the
examiners and supervisory agents of the OCC, the OTS, the FDIC and such other
authorities, access to the documentation required by applicable regulations of
the OCC, the OTS, the FDIC and such other authorities with respect to the
Mortgage Loans. Such access shall be afforded without charge, but only upon
reasonable and prior written request and during normal business hours at the
offices designated by the Master Servicer and the Servicer. In fulfilling such
request for access, the Master Servicer shall not be responsible to determine
the sufficiency of any information provided by the Servicer. Nothing in this
Section 3.04 shall limit the obligation of the Master Servicer and the Servicer
to observe any applicable law and the failure of the Master Servicer or the
Servicer to provide access as provided in this Section 3.04 as a result of such
obligation shall not constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims. (a) The Master Servicer shall not take, or permit the Servicer (to the
extent such action is prohibited under the Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Master Servicer
or the Servicer, would have been covered thereunder. The Master Servicer shall
use its best reasonable efforts to cause the Servicer (to the extent required
under the Servicing Agreement) to keep in force and effect (to the extent that
the Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. The
Master Servicer shall not, and shall not permit the Servicer (to the extent
required under the Servicing Agreement) to, cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the initial
issuance of the Mortgage Note and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the Servicer
(to the extent required under the Servicing Agreement) to present, on behalf of
the Trustee and the Certificateholders, claims to the insurer under any Primary
Mortgage Insurance Policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any Primary Mortgage Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Sections 3.08 and
3.09, any amounts collected by the Master Servicer or the Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Master Servicer
Custodial Account, subject to withdrawal pursuant to Section 3.11.
Section 3.06 Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer hereunder and in connection with any such
defaulted obligation to exercise the related rights of the Master Servicer
hereunder; provided that the Master Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. None of the Securities Administrator, the Trustee or the Depositor
shall have any responsibility or liability for any action or failure to act by
the Master Servicer and the Securities Administrator, the Trustee or the
Depositor shall not be obligated to supervise the performance of the Master
Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer. In the event the Master
Servicer or any successor master servicer shall for any reason no longer be the
Master Servicer hereunder (including by reason of an Event of Default), the
Trustee as trustee hereunder shall within 90 days of such time, assume, if it so
elects, or shall appoint a successor Master Servicer to assume, all of the
rights and obligations of the Master Servicer hereunder arising thereafter. Any
such assumption shall be subject to Sections 7.02 and 8.05.
The predecessor Master Servicer at its expense shall, upon request
of the Trustee, deliver to the assuming party all master servicing documents and
records and an accounting of amounts collected or held by the Master Servicer,
and shall transfer control of the Master Servicer Custodial Account and any
investment accounts to the successor Master Servicer, and otherwise use its best
efforts to effect the orderly and efficient transfer of its rights and duties as
Master Servicer hereunder to the assuming party. The Trustee shall be entitled
to be reimbursed from the predecessor Master Servicer (or the Trust if the
predecessor Master Servicer is unable to fulfill such obligations) for all
Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Account and Escrow Account. The Master
Servicer shall enforce the obligation of the Servicer to establish and maintain
the Servicer Custodial Account in accordance with the Servicing Agreement, with
records to be kept with respect thereto on a loan by loan basis, into which
accounts shall be deposited within 48 hours (or as of such other time specified
in the Servicing Agreement) of receipt all collections of principal and interest
on any Mortgage Loan and all collections with respect to any REO Property
received by the Servicer, including Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, Recoveries and Advances made from the Servicer's own funds
(less servicing compensation as permitted by the Servicing Agreement in the case
of the Servicer) and all other amounts to be deposited in the Servicer Custodial
Account. The Master Servicer is hereby authorized to make withdrawals from and
deposits to the Servicer Custodial Account for purposes required or permitted by
this Agreement.
To the extent required by the Servicing Agreement and by the related
Mortgage Note and not violative of current law, the Master Servicer shall
enforce the obligation of the Servicer to establish and maintain one or more
escrow accounts (collectively, the "Escrow Account") and deposit and retain
therein all collections from the Mortgagors (or Advances by the Servicer) for
the payment of taxes, assessments, hazard insurance premiums or comparable items
for the account of the Mortgagors. Nothing herein shall require the Master
Servicer to compel the Servicer to establish an Escrow Account in violation of
applicable law.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account; Certificate Account and Reserve Funds. (a) Continuously from
the date hereof until the principal and interest on all Mortgage Loans are paid
in full, the Master Servicer shall enforce the obligations of the Servicer to
collect all payments due under the terms and provisions of the Mortgage Loans
when the same shall become due and payable to the extent such procedures shall
be consistent with the Servicing Agreement.
(b) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of six sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00 a.m. New York
time, on each Distribution Date (or, if the Securities Administrator is no
longer the same Person as, or an Affiliate of, the Master Servicer, the Business
Day preceding each Distribution Date) all amounts on deposit in the Master
Servicer Custodial Account for distribution to Certificateholders.
(c) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be an Eligible Account and which may be
deemed to be a sub-account of the Certificate Account for so long as the Master
Servicer and the Securities Administrator are the same Person. The Master
Servicer shall, promptly upon receipt, deposit in the Master Servicer Custodial
Account and retain therein any amounts which are required to be deposited in the
Master Servicer Custodial Account by the Master Servicer.
(d) On a daily basis within one (1) Business Day of receipt (except
as otherwise specifically provided herein), the Master Servicer shall deposit or
cause to be deposited the following payments and collections remitted to the
Master Servicer by the Servicer from the Servicer Custodial Account pursuant to
the Servicing Agreement or otherwise or received by the Master Servicer in
respect of the Mortgage Loans subsequent to the Cut-off Date (other than in
respect of principal and interest due on the Mortgage Loans on or before the
Cut-off Date) and the following amounts required to be deposited hereunder:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.08 and (B) any Insurance Proceeds
released from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the Servicer;
(vi) Periodic Advances made by the Servicer pursuant to the
Servicing Agreement (or, if applicable, by the Master Servicer or the
Trustee pursuant to Section 3.21) and any Compensating Interest paid by
the Servicer pursuant to the Servicing Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be
deposited, it may at any time withdraw such amount from the Master Servicer
Custodial Account, any provision herein to the contrary notwithstanding. All
funds required to be deposited in the Master Servicer Custodial Account shall be
held by the Master Servicer in trust for the Certificateholders until disbursed
in accordance with this Agreement or withdrawn in accordance with Section 3.11.
(e) Each institution at which the Master Servicer Custodial Account
is maintained shall invest the funds therein as directed in writing by the
Master Servicer in Permitted Investments, which shall mature not later than the
Business Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All Master Servicer Custodial Account
Reinvestment Income shall be for the benefit of the Master Servicer as part of
its master servicing compensation and shall be remitted to the Master Servicer
monthly as provided herein. The amount of any losses realized in the Master
Servicer Custodial Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer from its own
funds in the Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is maintained
shall invest the funds therein if directed in writing by the Securities
Administrator in Permitted Investments that are obligations of the institution
that maintains the Certificate Account, which shall mature on the Distribution
Date and shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders. All income and gains net of any losses realized since
the preceding Distribution Date from Permitted Investments of funds in the
Certificate Account shall be for the benefit of the Securities Administrator as
its compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds in the Certificate Account.
(g) The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and the Rating Agencies of any proposed
change of location of the Master Servicer Custodial Account not later than 30
days after and not more that 45 days prior to any change thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any proposed change of the location of the
Certificate Account maintained by the Securities Administrator not later than 30
days after and not more than 45 days prior to any change thereof. The creation
of the Master Servicer Custodial Account and the Certificate Account shall be
evidenced by a certification substantially in the form attached hereto as
Exhibit F.
(h) The Securities Administrator shall designate each of the
Middle-Tier Certificate Sub-Account and the Upper-Tier Certificate Sub-Account
as a sub-account of the Certificate Account. On each Distribution Date (other
than the Final Distribution Date, if such Final Distribution Date is in
connection with a purchase of the assets of the Trust Estate by the Depositor),
the Securities Administrator shall, from funds available on deposit in the
Certificate Account, be deemed to deposit into the Middle-Tier Certificate
Sub-Account, the Lower-Tier Distribution Amount. The Securities Administrator
shall then immediately, from funds available in the Middle-Tier Certificate
Sub-Account, be deemed to deposit into the Upper-Tier Certificate Sub-Account,
the Middle-Tier Distribution Amount.
(i) (i) The Securities Administrator shall establish and maintain
the Class 1-A-1 Reserve Fund and the Class 2-A-1 Reserve Fund, held in trust for
the benefit of the Holders of the Class 1-A-1 and Class 2-A-1 Certificates,
respectively, and Banc of America Securities LLC. The Securities Administrator
shall deposit in the applicable Reserve Fund on the date received by it, any
related Yield Maintenance Agreement Payment received from the Counterparty for
the related Distribution Date. Funds on deposit in the Reserve Funds shall
remain uninvested. On each Distribution Date, the Securities Administrator shall
withdraw from the applicable Reserve Fund any related Yield Maintenance
Agreement Payment received in respect of such Distribution Date and any Excess
Funds in such Reserve Fund and shall distribute such amounts to the Class 1-A-1
or Class 2-A-1 Certificates, as the case may be, in an amount up to the sum of
the applicable Yield Maintenance Amount for such Distribution Date and any
applicable Yield Maintenance Amount Shortfalls for prior Distribution Dates. Any
amounts remaining in the Class 1-A-1 or the Class 2-A-1 Reserve Fund on the date
on which the Class Certificate Balance of the Class 1-A-1 Certificates or Class
2-A-1 Certificates is reduced to zero (after payment of the related Yield
Maintenance Amount for such date and the amount of any related Yield Maintenance
Amount Shortfalls from previous Distribution Dates not yet paid) shall be
distributed by the Securities Administrator to Banc of America Securities LLC.
(ii) The Securities Administrator shall account for the Reserve
Funds and the Yield Maintenance Agreements and the rights with respect
thereto as assets of the Grantor Trust and not as assets of any REMIC
created pursuant to this Agreement. The beneficial owner of the Yield
Maintenance Agreements and the Reserve Funds is Banc of America Securities
LLC.
(iii) Any amounts in the applicable Reserve Fund paid by the
Securities Administrator pursuant to this Section 3.09(i) to the Class
1-A-1 or Class 2-A-1 Certificates shall be accounted for by the Securities
Administrator as amounts paid to the Class 1-A-1 or Class 2-A-1
Certificates from the Grantor Trust. In addition, the Securities
Administrator shall account for the right of the Class 1-A-1 and Class
2-A-1 Certificates to receive amounts from the applicable Reserve Fund as
rights in limited recourse interest rate cap contracts written by Banc of
America Securities LLC in favor of the Class 1-A-1 and Class 2-A-1
Certificates.
(iv) For federal tax return and information reporting purposes, the
right of the Holders of the Class 1-A-1 and Class 2-A-1 Certificates to
receive payments under the applicable Yield Maintenance Agreement shall be
assigned a value of zero as of the Closing Date.
Section 3.10 Access to Certain Documentation and Information Regarding the
Mortgage Loans. The Master Servicer shall afford and shall enforce the
obligation of the Servicer to afford the Securities Administrator and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but only
upon reasonable request and during normal business hours at the office
designated by the Master Servicer or the Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account and the
Master Servicer Custodial Account. (a) The Securities Administrator shall
withdraw funds from the Certificate Account for distributions to
Certificateholders in the manner specified in this Agreement. In addition, the
Master Servicer may from time to time make withdrawals from the Master Servicer
Custodial Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained by
it), the Servicing Fee to which it is entitled pursuant to the Servicing
Agreement and to pay itself any Master Servicer Custodial Account
Reinvestment Income;
(ii) to pay to the Securities Administrator, the Custodian and the
Trustee any amounts due to the Securities Administrator, the Custodian and
the Trustee under this Agreement (including, but not limited to, all
amounts provided for under Section 9.11, other than the amounts provided
for in the first and second sentences of Section 9.11);
(iii) to reimburse the Servicer (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the Servicing
Agreement (or in the case of itself or the Trustee, pursuant to Section
3.21), such right of reimbursement pursuant to this clause (iii) being
limited first to amounts received on the Mortgage Loans serviced by the
Servicer in the related Loan Group in respect of which any such Advance
was made and then limited to amounts received on all the Mortgage Loans
serviced by the Servicer (or, if applicable, the Master Servicer or the
Trustee) in respect of which any such Advance was made;
(iv) to reimburse the Servicer (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to amounts
received on the Mortgage Loans in the same Loan Group as the Mortgage
Loan(s) in respect of which such Nonrecoverable Advance was made and then
limited to amounts received on all the Mortgage Loans serviced by the
Servicer (of, if applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02 or 2.04, all
amounts received thereon after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred by
either of them and reimbursable pursuant to this Agreement, including but
not limited to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial Account
upon termination of this Agreement pursuant to Section 10.01.
If the Master Servicer shall remit to the Securities Administrator any amount
not required to be remitted, it may at any time direct the Securities
Administrator to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Securities
Administrator which describes the amounts remitted in error to the Securities
Administrator for deposit to the Certificate Account.
(b) On each Distribution Date, funds on deposit in the Certificate
Account and deemed to be on deposit in the Upper-Tier Certificate Sub-Account
shall be used to make payments on the Regular Certificates and the Class 1-A-R
Certificate (in respect of the Class UR Interest) as provided in Sections 5.01
and 5.02. The Certificate Account shall be cleared and terminated upon
termination of this Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance and Other Insurance. For each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicer
under the Servicing Agreement to maintain or cause to be maintained fire, flood
and hazard insurance with extended coverage customary in the area where the
Mortgaged Property is located in accordance with the Servicing Agreement. It is
understood and agreed that such insurance provided for in this Section 3.12
shall be with insurers meeting the eligibility requirements set forth in the
Servicing Agreement and that no earthquake or other additional insurance is to
be required of any Mortgagor or to be maintained on property acquired in respect
of a defaulted loan, other than pursuant to such applicable laws and regulations
as shall at any time be in force and as shall require such additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
Master Servicer, or by the Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
Servicing Agreement) shall be deposited into the Master Servicer Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11. Any cost
incurred by the Master Servicer or the Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or the
Servicer pursuant to Sections 3.08 and 3.09.
Section 3.13 Presentment of Claims and Collection of Proceeds. The
Master Servicer shall (to the extent provided in the Servicing Agreement) cause
the Servicer to prepare and present on behalf of the Trustee and the
Certificateholders all claims under the Insurance Policies and take such actions
(including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to the Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Master Servicer Custodial Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. To the extent provided in the Servicing Agreement and to the extent
Mortgage Loans contain enforceable due-on-sale clauses, the Master Servicer
shall cause the Servicer to enforce such clauses in accordance with the
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
Servicing Agreement.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO
Property.(a) The Master Servicer shall cause the Servicer (to the extent
required under the Servicing Agreement) to foreclose upon or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, all
in accordance with the Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Master Servicer shall enforce the obligation of the Servicer, to the extent
provided in the Servicing Agreement, to (i) cause the name of the Trust to be
placed on the title to such REO Property and (ii) ensure that the title to such
REO Property references this Agreement. The Master Servicer shall, to the extent
provided in the Servicing Agreement, cause the Servicer to sell any REO Property
as expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall cause the Servicer to protect
and conserve such REO Property in the manner and to the extent required by the
Servicing Agreement, subject to the REMIC Provisions. In the event that the
Trust Estate acquires any Mortgaged Property as aforesaid or otherwise in
connection with a default or imminent default on a Mortgage Loan, the Master
Servicer shall enforce the obligation of the Servicer to dispose of such
Mortgaged Property within the time period specified in the Servicing Agreement,
but in any event within three years after the acquisition by the Servicer for
the Trust (such period, the "REO Disposition Period") unless (i) the Servicer
provides to the Trustee, the Master Servicer and the Securities Administrator an
Opinion of Counsel to the effect that the holding by the Trust of such Mortgaged
Property subsequent to three years after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code or under the law of any state in which real property
securing a Mortgage Loan owned by the Trust is located or cause any REMIC
created hereunder to fail to qualify as a REMIC for federal income tax purposes
or for state tax purposes under the laws of any state in which real property
securing a Mortgage Loan owned by the Trust is located at any time that any
Certificates are outstanding or (ii) the Servicer shall have applied for and
received an extension of such period from the Internal Revenue Service, in which
case the Trust Estate may continue to hold such Mortgaged Property for the
period of such extension.
(c) The Master Servicer shall, to the extent required by the
Servicing Agreement, cause the Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the Servicer
Custodial Account.
(d) The Servicer, upon the final disposition of any REO Property,
shall be entitled to reimbursement for any related unreimbursed Advances and
other unreimbursed advances as well as any unpaid Servicing Fees from
Liquidation Proceeds received in connection with the final disposition of such
REO Property; provided that any such unreimbursed Advances as well as any unpaid
Servicing Fees may be reimbursed or paid, as the case may be, prior to final
disposition, out of any net rental income or other net amounts derived from such
REO Property.
(e) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Servicer as provided above shall be
deposited in the Servicer Custodial Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the Master
Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, the Master
Servicer shall not permit any Mortgaged Property acquired by the Trust to be
rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code,
(ii) result in the receipt by any REMIC created hereunder of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
any "net income from foreclosure property" which is subject to taxation under
the REMIC Provisions or (iii) subject any REMIC created hereunder to the
imposition of any federal, state or local income taxes on the income earned from
such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the Master Servicer or the Servicer, as applicable, has agreed to indemnify and
hold harmless the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Securities Administrator, as applicable, shall comply with all
federal withholding requirements with respect to payments to Certificateholders
of interest or original issue discount that the Master Servicer or the
Securities Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for any such withholding.
Without limiting the foregoing, the Master Servicer agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that has furnished or caused to be furnished an
effective Form W-8 or an acceptable substitute form or a successor form and who
is not a "10 percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the event the
Securities Administrator withholds any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
Section 3.16 Trustee to Cooperate; Release of Mortgage Files. Upon the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer or
the Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Master Servicer or the Servicer will
immediately notify the Trustee and the Custodian by delivering, or causing to be
delivered, two copies (one of which will be returned to the Servicer with the
Mortgage File) of a Request for Release (which may be delivered in an electronic
format acceptable to the Custodian and the Trustee and the Master Servicer or
the Servicer). Upon receipt of such request, the Custodian shall within seven
(7) Business Days release the related Mortgage File to the Master Servicer or
the Servicer. The Trustee shall at the Master Servicer's or the Servicer's
direction execute and deliver to the Master Servicer or the Servicer the request
for reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage relating to the Mortgage
Loan, in each case provided by the Master Servicer or the Servicer, together
with the Mortgage Note with written evidence of cancellation thereon. If the
Mortgage has been recorded in the name of MERS or its designee, the Master
Servicer shall enforce the Servicer's obligation under the Servicing Agreement
take all necessary action to reflect the release of the Mortgage on the records
of MERS. Expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the related Mortgagor of the
Mortgage Loan.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any Primary Mortgage Insurance Policy, any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Custodian shall, upon
delivery to the Custodian of a Request for Release signed by a Master Servicing
Officer or a Servicing Officer, release the Mortgage File within seven (7)
Business Days to the Master Servicer or the Servicer. Subject to the further
limitations set forth below, the Master Servicer or the Servicer shall cause the
Mortgage Files so released to be returned to the Custodian when the need
therefor no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Servicer Custodial Account, in which case
the Servicer shall deliver to the Custodian a Request for Release, signed by a
Servicing Officer.
If the Master Servicer or the Servicer at any time seeks to initiate
a foreclosure proceeding in respect of any Mortgaged Property as authorized by
this Agreement or the Servicing Agreement, the Master Servicer or the Servicer
shall deliver or cause to be delivered to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale or other documents
necessary to effectuate such foreclosure or any legal action brought to obtain
judgment against the Mortgagor on the Mortgage Note or the Mortgage or to obtain
a deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Section 3.17 Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee Notwithstanding any other provisions
of this Agreement, the Master Servicer shall cause the Servicer to transmit to
the Custodian as required by this Agreement and the Servicing Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Servicer from time to time and shall account fully to the
Trustee for any funds received by the Master Servicer or the Servicer or which
otherwise are collected by the Master Servicer or the Servicer as Liquidation
Proceeds, Recoveries or Insurance Proceeds in respect of any Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the Servicer in respect of any Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the Master Servicer
Custodial Account or the Servicer Custodial Account, shall be held by the Master
Servicer or the Servicer for and on behalf of the Trustee and shall be and
remain the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement and the Servicing Agreement. The Master Servicer
also agrees that it shall not, and shall enforce any requirement under the
Servicing Agreement that the Servicer shall not, knowingly create, incur or
subject any Mortgage File or any funds that are deposited in any Master Servicer
Custodial Account, the Servicer Custodial Account, the Certificate Account or
any Escrow Account, or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance
created by the Master Servicer or the Servicer, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Master Servicer under
this Agreement.
Section 3.18 Master Servicer Compensation. As compensation for its
services hereunder, the Master Servicer shall be entitled to a fee in an amount
agreed upon between the Master Servicer and the Securities Administrator,
payable by the Securities Administrator out of its own funds and not out of any
funds of the Trust Estate. The Master Servicer shall also be entitled to
additional compensation in the form of the Master Servicer Custodial Account
Reinvestment Income. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder and
shall not be entitled to reimbursement therefor except as specifically provided
in this Agreement.
Section 3.19 Annual Statement as to Compliance. The Master Servicer shall
deliver to the Securities Administrator (and the Securities Administrator will
forward to the Trustee and each Rating Agency), no later than March 15 following
the end of each calendar year commencing with March 2006, an Officer's
Certificate, signed by two officers of the Master Servicer, stating, as to the
signers thereof, that (a) a review of the activities of the Master Servicer
during the preceding calendar year and of the performance of the Master Servicer
under this Agreement or similar agreements has been made under such officer's
supervision, and (b) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
In addition, the Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a similar statement to the
Securities Administrator relating to compliance with the Servicing Agreement.
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements The Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a report to the Securities
Administrator, as required to be provided each year pursuant to the Servicing
Agreement, prepared by a firm of independent public accountants (who may also
render other services to the Servicer or any affiliate thereof) which is a
member of the American Institute of Certified Public Accountants (i) to the
effect that such firm has, with respect to the Servicer's overall servicing
operations, examined such operations in accordance with the requirements of the
Uniform Single Attestation Program for Mortgage Bankers, stating such firm's
conclusions relating thereto or (ii) commencing with calendar year 2007, in
accordance with Rule 1-02(a)(3) and Rule 2-02(g) of Regulation S-X under the
1933 Act and the Exchange Act, that attests to, and reports on an assessment
made by the Servicer of its compliance with the applicable servicing criteria
set forth in Item 1122(d) of Regulation AB, as required by Rules 13a-18 and
15d-18 under the Exchange Act, and Item 1122(b) of Regulation AB.
Section 3.21 Advances. The Master Servicer shall enforce the obligations
of the Servicer to make a Periodic Advance in accordance with the Servicing
Agreement. The Servicer shall be entitled to be reimbursed from the Servicer
Custodial Account for all Advances of its own funds made pursuant to the
Servicing Agreement. Based upon information set forth in the servicer reports,
the Master Servicer shall inform the Securities Administrator of the amount of
the Periodic Advance to be made by the Servicer on each applicable Advance Date
no later than the related Remittance Date. If the Servicer fails to make any
required Periodic Advance pursuant to the Servicing Agreement, the Master
Servicer shall (i) unless the Master Servicer determines that such Periodic
Advance would not be recoverable in its good faith business judgment, make such
Periodic Advance not later than the Business Day preceding the related
Distribution Date and (ii) to the extent such failure leads to the termination
of the Servicer and until such time as a successor Servicer is appointed,
continue to make Periodic Advances required pursuant to the Servicing Agreement
for any Distribution Date, within the same time frame set forth in (i) above,
unless the Master Servicer determines (to the extent provided in the Servicing
Agreement) that such Periodic Advance would not be recoverable.
Section 3.22 Reports to the Securities and Exchange Commission. (a)
The Securities Administrator and the Master Servicer shall reasonably cooperate
with the Depositor in connection with the Trust's satisfying its reporting
requirements under the Exchange Act. Without limiting the generality of the
foregoing, the Securities Administrator shall prepare on behalf of the Trust any
monthly Current Reports on Form 8-K (each, a "Monthly Form 8-K") and Annual
Reports on Form 10-K (each, a "Form 10-K") customary for similar securities as
required by the Exchange Act and the rules and regulations of the Securities and
Exchange Commission thereunder, and the Securities Administrator shall sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such Forms (other than any Annual Report on Form 10-K, which
shall be signed by the Master Servicer) on behalf of the Trust. Notwithstanding
the previous sentence, the Depositor shall file the Monthly Form 8-K in
connection with the filing of this Agreement.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date, including a copy of
the monthly statement to Certificateholders delivered pursuant to Section
5.04(b) (each, a "Distribution Date Statement") for such Distribution Date as an
exhibit thereto. On or prior to March 30th of each year (or such earlier date as
may be required by the Exchange Act and the rules and regulations of the
Securities and Exchange Commission), commencing in the calendar year following
the date of this Agreement, the Securities Administrator shall file a Form 10-K,
in substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as exhibits the
Master Servicer's and the Servicer's annual statement of compliance described
under Section 3.19 and the accountant's reports referenced under Section 3.20,
in each case, to the extent they have been timely delivered to the Securities
Administrator. If they are not so timely delivered, the Securities Administrator
shall file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Securities Administrator. The
Securities Administrator shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Securities Administrator's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The Form
10-K shall also include a certification in the form attached hereto as Exhibit M
(the "Certification"), which shall be signed by a senior officer of the Master
Servicer in charge of the master servicing functions. The Master Servicer shall
deliver the Certification to the Securities Administrator three (3) Business
Days prior to the latest date on which the Form 10-K may be timely filed. The
Securities Administrator, the Depositor and the Master Servicer shall reasonably
cooperate to enable the Securities and Exchange Commission requirements with
respect to the Trust to be met in the event that the Securities and Exchange
Commission issues additional interpretive guidelines or promulgates rules or
regulations, or in the event of any other change of law that would require
reporting arrangements or the allocation of responsibilities with respect
thereto, as described in this Section 3.22, to be conducted or allocated in a
different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and deliver to the
Master Servicer a certification (in the form attached hereto as Exhibit N) for
the benefit of the Master Servicer and its officers, directors and affiliates
(provided, however, that the Securities Administrator shall not undertake an
analysis of any accountants' report attached as an exhibit to the Form 10-K). In
addition, the Securities Administrator shall indemnify and hold harmless the
Master Servicer, each person, if any, who "controls" the Master Servicer within
the meaning of the 1933 Act, as amended, and their respective officers,
directors, agents and affiliates (collectively, the "Master Servicer Indemnified
Parties") from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any inaccuracy in the certification
provided by the Securities Administrator pursuant to this Section 3.22(c), any
breach by the Securities Administrator or any of its officers, directors, agents
or affiliates of its obligations under this Section 3.22(c) or any material
misstatements or omission contained in the certification delivered pursuant to
this Section 3.22(c) or the Securities Administrator's negligence, bad faith or
willful misconduct in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Master Servicer
Indemnified Parties, then the Securities Administrator agrees that it shall
contribute to the amount paid or payable by such Master Servicer Indemnified
Parties as a result of the losses, claims, damages or liabilities of such Master
Servicer Indemnified Parties in such proportion as is appropriate to reflect the
relative fault of such Master Servicer Indemnified Parties on the one hand and
the Securities Administrator on the other in connection with a breach of the
Securities Administrator's obligations under this Section 3.22(c), any material
misstatement or omission contained in the certification delivered pursuant to
this Section 3.22(c) or the Securities Administrator's negligence, bad faith or
willful misconduct in connection therewith. The Master Servicer hereby
acknowledges and agrees that the Depositor and the Securities Administrator are
relying on the Master Servicer's performance of its obligations under Sections
3.19 and 3.20 in order to perform their respective obligations under this
Section 3.22.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Master Servicer shall enforce the obligation of the
Servicer to provide the certification required pursuant to the Servicing
Agreement.
(e) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K. On or prior to
January 30, 2006, unless otherwise requested by the Depositor, the Securities
Administrator shall prepare, execute and file with the Securities and Exchange
Commission a Form 15 Suspension Notification with respect to the Trust. At any
time after the filing of a Form 15 Suspension Notification, if the Depositor or
the Certificate Registrar determines that the number of Certificateholders of
record exceeds the number set forth in Section 15(d) of the Exchange Act or the
regulations promulgated pursuant thereto which would cause the Trust to again
become subject to the reporting requirements of the Exchange Act, it shall
promptly notify the Securities Administrator and the Securities Administrator
shall recommence preparing and filing reports on Form 8-K and 10-K as required
pursuant to this Section and the parties hereto will again have the obligations
set forth in paragraphs (a) through (e) of this Section until such time as the
Securities Administrator is again able to file with the Securities and Exchange
Commission a Form 15 Suspension Notification with respect to the Trust.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate. Each month, not later than
12:00 noon Eastern time on the 18th calendar day of such month (or if such day
is not a Business Day, the following Business Day), the Master Servicer shall
deliver to the Securities Administrator, a Master Servicer's Certificate based
solely on the information provided by the Servicer (in substance and format
mutually acceptable to the Master Servicer and the Securities Administrator)
certified by a Master Servicing Officer setting forth the information necessary
in order for the Securities Administrator to perform its obligations under this
Agreement. The Securities Administrator may conclusively rely upon the
information contained in a Master Servicer's Certificate delivered by the Master
Servicer for all purposes hereunder and shall have no duty to verify or
re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based solely
on the information in the Master Servicer's Certificate, the Securities
Administrator shall distribute out of the Certificate Account, the Middle-Tier
Certificate Sub-Account or the Upper-Tier Certificate Sub-Account, as applicable
(to the extent funds are available therein), to each Certificateholder of record
on the related Record Date (other than as provided in Section 10.01 respecting
the final distribution) (a) by check mailed to such Certificateholder entitled
to receive a distribution on such Distribution Date at the address appearing in
the Certificate Register, or (b) upon written request by the Holder of a
Certificate (other than a Residual Certificate), by wire transfer or by such
other means of payment as such Certificateholder and the Securities
Administrator shall agree upon, such Certificateholder's Percentage Interest in
the amount to which the related Class of Certificates is entitled in accordance
with the priorities set forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of
Certificates shall be applied first to the distribution of interest thereon
and then to principal thereon.
Section 5.02 Priorities of Distributions. (a) On each
Distribution Date, the Securities Administrator shall withdraw from the
Certificate Account (to the extent funds are available therein) (1) to the
extent not previously paid, the amounts payable to the Master Servicer, the
Securities Administrator and the Trustee pursuant to Section 3.09(f) and Section
3.11(a) and shall pay such funds to itself, the Master Servicer and the Trustee,
as applicable, and (2) based solely on the information contained in the Master
Servicer's Certificate, the Pool Distribution Amount (after the payment of the
Servicing Fees for such Mortgage Loans and expenses and indemnities reimbursable
pursuant to this Agreement, in each case to the extent not previously retained
by or distributed to the Servicer, the Securities Administrator, the Master
Servicer or the Trustee) for each Loan Group, and shall apply such funds to the
Certificates in the following order of priority and to the extent of such funds,
paying Group 1 solely from the Pool Distribution Amount for Loan Group 1, paying
Group 2 solely from the Pool Distribution Amount for Loan Group 2, paying Group
3 solely from the Pool Distribution Amount for Loan Group 3, paying Group 4
solely from the Pool Distribution Amount for Loan Group 4 and paying the
Subordinate Certificates (including amounts used to pay Class PO Deferred
Amounts) from the combined Pool Distribution Amounts for all Loan Groups, in the
following order of priority and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class CB-IO
Certificates) and the Class IO Component of such Group, if any, an amount
allocable to interest equal to the Interest Distribution Amount for such
Class or Component Interest Distribution Amount for such Component and any
shortfall being allocated among such Classes or Component in proportion to
the amount of the Interest Distribution Amount or Component Interest
Distribution Amount, as the case may be, that would have been distributed
in the absence of such shortfall;
(ii) concurrently, to each Class of Senior Certificates (other than
the Class 1-A-2, Class 1-IO, Class 2-A-2, Class CB-IO and Class X-PO
Certificates) and the Class PO Component of such Group, pro rata, based on
their Senior Principal Distribution Amount and PO Principal Amount,
respectively, (A) to such Senior Certificates, in an aggregate amount up
to the Senior Principal Distribution Amount for such Group, such
distribution to be allocated among such Classes in accordance with Section
5.02(b) and (B) to the Class PO Component of such Group in an aggregate
amount up to the applicable PO Principal Amount for such Group;
(iii) to the applicable Class PO Component of such Group, any
applicable Class PO Deferred Amount (after giving effect to the
distribution to such Class PO Component of the Class PO Recovery for the
Related Loan Group), up to the Subordinate Principal Distribution Amount
for all Loan Groups from amounts otherwise distributable, first to the
Class B-6 Certificates pursuant to clause (iv)(L) below, second to the
Class B-5 Certificates, pursuant to clause (iv)(J) below, third to the
Class B-4 Certificates, pursuant to clause (iv)(H) below, fourth to the
Class B-3 Certificates, pursuant to clause (iv)(F) below, fifth to the
Class B-2 Certificates, pursuant to clause (iv)(D) below and finally to
the Class B-1 Certificates, pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero; and
(v) to the Holder of the Class 1-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Sub-Account and the Middle-Tier
Certificate Sub-Account and any remaining Pool Distribution Amounts.
No Class of Certificates or Component will be entitled to any
distributions with respect to the amount payable pursuant to clause (ii)
of the definition of "Interest Distribution Amount" or "Component Interest
Distribution Amount" after its Class Certificate Balance or Notional
Amount, as the case may be, has been reduced to zero.
For any Group and on any Distribution Date, amounts distributed in
respect of the Class PO Deferred Amounts (including the distribution of
the Class PO Recoveries) will not reduce the Component Balance of the
applicable Class PO Component.
All distributions in respect of the Interest Distribution Amount for
a Class or the Component Interest Distribution Amount for a Component will
be applied first with respect to the amount payable pursuant to clause (i)
of the definition of "Interest Distribution Amount" or "Component Interest
Distribution Amount" as applicable, and second with respect to the amount
payable pursuant to clause (ii) of such definitions.
On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amount sequentially to each Class of
Certificates then outstanding which bore the loss to which such
Reimbursement Amount relates, beginning with the most senior of such
Classes of Certificates, up to, with respect to each Class, the amount of
loss borne by such Class. Any Reimbursement Amount remaining after the
application described in the preceding sentence shall be included in the
Pool Distribution Amount for the applicable Loan Group.
(vi) Distributions on the Uncertificated Lower-Tier Interests. On
each Distribution Date, interest shall be distributed in respect of the
Uncertificated Lower-Tier Interests (other than the Class 1-LPO Interest,
Class 2-LPO Interest, Class 3-LPO Interest and Class 4-LPO Interest, at
the pass-through rate thereon, as described in the next to last paragraph
of this Section 5.02(a)(vi). All distributions of principal shall be made
first to the Class 1-LPO Interest, Class 2-LPO Interest, Class 3-LPO
Interest and Class 4-LPO Interest, so as to keep the principal balances
thereof at all times equal to the Component Balances of the Class 1-PO
Component, the Class 2-PO Component, the Class 3-PO Component and the
Class 4-PO Component, respectively; second, to the Class 1-LS Interest,
Class 2-LS Interest, Class 3-LS Interest and Class 4-LS Interest, so as to
keep the principal balances thereof (computed to eight decimal places)
equal to 0.100% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2, Loan Group 3 and Loan Group 4, respectively (except that if any
such amount is greater than on the preceding Distribution Date, the least
amount of principal shall be distributed to the Class 1-LS Interest, Class
2-LS Interest, Class 3-LS Interest and Class 4-LS Interest, such that the
Subordinate Balance Ratio is maintained), and third, any remaining
principal to the Class 1-L Interest, Class 2-L Interest, Class 3-L
Interest and Class 4-L Interest. Any distributions of principal made to
the Uncertificated Lower-Tier Interests pursuant to this paragraph shall
be made from the Group 1 Mortgage Loans to the Uncertificated Lower-Tier
Interests beginning with the numeral "1," from the Group 2 Mortgage Loans
to the Uncertificated Lower-Tier Interests beginning with the numeral "2,"
from the Group 3 Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with the numeral "3" and from the Group 4 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral "4."
Realized Losses shall be applied after all distributions have been
made on each Distribution Date first, to the Class 1-LPO Interest, Class
2-LPO Interest, Class 3-LPO Interest and Class 4-LPO Interest, so as to
keep their principal balances equal to the Component Balances of the Class
1-PO Component, the Class 2-PO Component, the Class 3-PO Component and the
Class 4-PO Component, respectively; second, to the Class 1-LS Interest,
Class 2-LS Interest, Class 3-LS Interest and Class 4-LS Interest, so as to
keep the principal balances thereof (computed to eight decimal places)
equal to 0.100% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2, Loan Group 3 and Loan Group 4, respectively (except that if any
such amount is greater than on the preceding Distribution Date, the least
amount of Realized Losses shall be allocated to the Class 1-LS Interest,
Class 2-LS Interest, Class 3-LS Interest and Class 4-LS Interest such that
the Subordinate Balance Ratio is maintained); and third, the remaining
Realized Losses shall be allocated to the Class 1-L Interest, Class 2-L
Interest, Class 3-L Interest and Class 4-L Interest. Any Realized Losses
allocated to the Uncertificated Lower-Tier Interests pursuant to this
paragraph shall be (a) from Realized Losses allocated to Loan Group 1 in
the case of Uncertificated Lower-Tier Interests beginning with the numeral
"1," (b) from Realized Losses allocated to Loan Group 2 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "2," (c)
from Realized Losses allocated to Loan Group 3 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "3" and (d)
from Realized Losses allocated to Loan Group 4 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "4."
As of any date, the aggregate principal balance of the Class 1-L
Interest and the Class 1-LS Interest shall equal the aggregate Pool Stated
Principal Balance (Non-PO Portion) of Loan Group 1. As of any date, the
aggregate principal balance of the Class 2-L Interest and the Class 2-LS
Interest shall equal the aggregate Pool Stated Principal Balance (Non-PO
Portion) of Loan Group 2. As of any date, the aggregate principal balance
of the Class 3-L Interest and the Class 3-LS Interest shall equal the
aggregate Pool Stated Principal Balance (Non-PO Portion) of Loan Group 3.
As of any date, the aggregate principal balance of the Class 4-L Interest
and the Class 4-LS Interest shall equal the aggregate Pool Stated
Principal Balance (Non-PO Portion) of Loan Group 4. As of any date, (i)
the principal balance of the Class 1-LPO Interest will be equal to the
Component Balance of the Class 1-PO Component, (ii) the principal balance
of the Class 2-LPO Interest will be equal to the Component Balance of the
Class 2-PO Component, (iii) the principal balance of the Class 3-LPO
Interest will be equal to the Component Balance of the Class 3-PO
Component and (iv) the principal balance of the Class 4-LPO Interest will
be equal to the Component Balance of the Class 4-PO Component. As of any
date, (i) the notional amount of the Class 1-LIO Interest will be equal to
the Class 1-IO Notional Amount, (ii) the notional amount of the Class
2-LIO Interest will be equal to the Class 2-IO Notional Amount, (iii) the
notional amount of the Class 3-LIO Interest will be equal to the Class
3-IO Notional Amount and (iv) the notional amount of the Class 4-LIO
Interest will be equal to the Class 4-IO Notional Amount.
The pass-through rate with respect to the Class 1-L Interest and the
Class 1-LS Interest shall be 5.750% per annum. The pass-through rate with
respect to the Class 2-L Interest and the Class 2-LS Interest shall be
5.857% per annum. The pass-through rate with respect to the Class 3-L
Interest and the Class 3-LS Interest shall be 6.500% per annum. The
pass-through rate with respect to the Class 4-L Interest and the Class
4-LS Interest shall be 6.500% per annum. The pass-through rate with
respect to the Class 1-LIO Interest shall be the same as the Pass-Through
Rate for the Class 1-IO Certificates, as such rate is described in the
Preliminary Statement. The pass-through rate with respect to the Class
2-LIO Interest, Class 3-LIO Interest and Class 4-LIO Interest shall be the
same as the Pass-Through Rate for the Class 2-IO Component, Class 3-IO
Component and Class 4-IO Component, respectively, as each such rate is
described in the Preliminary Statement. The Class 1-LPO Interest, Class
2-LPO Interest, Class 3-LPO Interest and Class 4-LPO Interest are
principal-only interests and are not entitled to distributions of
interest.
Any Non-Supported Interest Shortfalls and Relief Act Reductions will
be allocated to each Uncertificated Lower-Tier Interest in the same
relative proportions as interest is allocated to such Uncertificated
Lower-Tier Interest. Amounts distributed to the Uncertificated Lower-Tier
Interests in respect of principal and interest with respect to any
Distribution Date are referred to herein collectively as the "Lower-Tier
Distribution Amount."
(vii) Distributions on the Uncertificated Middle-Tier Interests. On
each Distribution Date, each Uncertificated Middle-Tier Interest (other
than the Class 1-MIO Interest, Class 2-MIO Interest, Class 3-MIO Interest
and Class 4-MIO Interest) shall receive distributions in respect of
principal in an amount equal to the amount of principal distributed to its
respective Corresponding Upper-Tier Class, Classes or Component, as
provided herein. On each Distribution Date, each Uncertificated
Middle-Tier Interest (other than the Class 1-MPO Interest, Class 2-MPO
Interest, Class 3-MPO Interest and Class 4-MPO Interest) shall receive
distributions in respect of interest in an amount equal to the Interest
Accrual Amounts and Unpaid Interest Shortfalls, as the case may be, in
respect of its Corresponding Upper-Tier Class, Classes or Component, in
each case to the extent actually distributed thereon. Such amounts
distributed to the Uncertificated Middle-Tier Interests in respect of
principal and interest with respect to any Distribution Date are referred
to herein collectively as the "Middle-Tier Distribution Amount."
As of any date, the principal balance or notional amount of each
Uncertificated Middle-Tier Interest equals the aggregate of the Class
Certificate Balances, Component Balance or Notional Amounts of the
respective Corresponding Upper-Tier Class, Classes or Component or, in the
case of the Class 1-A-M1 Interest or Class 2-A-M1 Interest, the Class
Certificate Balance of the Class 1-A-1 Certificates and Class 2-A-2
Certificates, respectively. The initial principal balance or notional
amount of each Uncertificated Middle-Tier Interest equals the aggregate of
the Initial Class Certificate Balances, Component Balance or Initial
Notional Amounts of the respective Corresponding Upper-Tier Class, Classes
or Component or, in the case of the Class 1-A-M1 Interest or Class 2-A-M1
Interest, the Initial Class Certificate Balance of the Class 1-A-1
Certificates and Class 2-A-1 Certificates, respectively.
The pass-through rate with respect to the Class 1-A-M1 Interest,
Class 1-A-M3 Interest and Class 1-A-MUR Interest shall be 5.750% per
annum. The pass-through rate with respect to the Class 2-A-M1 Interest and
Class 2-A-M3 Interest shall be 5.750% per annum. The pass-through rate
with respect to the Class 2-A-M8 Interest shall be 6.000% per annum. The
pass-through rate with respect to the Class 3-A-M1 Interest shall be
6.500% per annum. The pass-through rate with respect to the Class 4-A-M1
Interest shall be 6.500% per annum. The pass-through rate with respect to
the Class B-M1 Interest, Class B-M2 Interest, Class B-M3 Interest, Class
B-M4 Interest, Class B-M5 Interest and Class B-M6 Interest shall be the
weighted average of the Class 1-LS Interest, Class 2-LS Interest, Class
3-LS Interest and Class 4-LS Interest. The pass-through rate with respect
to the Class 1-MIO Interest shall be a per annum rate equal to the
Pass-Through Rate of the Class 1-IO Certificates. The pass-through rate
with respect to the Class 2-MIO Interest shall be a per annum rate equal
to the Pass-Through Rate of the Class 2-IO Component. The pass-through
rate with respect to the Class 3-MIO Interest shall be a per annum rate
equal to the Pass-Through Rate of the Class 3-IO Component. The
pass-through rate with respect to the Class 4-MIO Interest shall be a per
annum rate equal to the Pass-Through Rate of the Class 4-IO Component. The
Class 1-MPO Interest, Class 2-MPO Interest, Class 3-MPO Interest and Class
4-MPO Interest are principal-only interests and are not entitled to
distributions of interest.
(b) (i) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
sequentially, as follows:
first, to the Class 1-A-R Certificate, until its Class Certificate
Balance has been reduced to zero;
second, concurrently, to the Class 1-A-3 and Class 1-A-4
Certificates, pro rata, up to the Group 1 Priority Amount for such Distribution
Date;
third, $1,000, concurrently, to the Class 1-A-1 and Class 1-A-8
Certificates, pro rata, until their Class Certificate Balances have been reduced
to zero;
fourth, $157,244, sequentially, to the Class 1-A-5 and Class 1-A-6
Certificates, in that order, until their Class Certificate Balances have been
reduced to zero;
fifth, concurrently, to the Class 1-A-1 and Class 1-A-8
Certificates, pro rata, until their Class Certificate Balances have been reduced
to zero;
sixth, sequentially, to the Class 1-A-5 and Class 1-A-6
Certificates, in that order, until their Class Certificate Balances have been
reduced to zero;
seventh, to the Class 1-A-7 Certificates, until their Class
Certificate Balance has been reduced to zero; and
eighth, concurrently, to the Class 1-A-3 and Class 1-A-4
Certificates, pro rata, until their Class Certificate Balances have been reduced
to zero.
(ii) With respect to the Group 2 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
concurrently, as follows:
(A) 57.2001849975%, sequentially, as follows:
(i) concurrently, to the Class 2-A-3 and Class 2-A-4
Certificates, pro rata, up to the Group 2 Priority Amount for such
Distribution Date;
(ii) $1,000, to the Class 2-A-1 Certificates, until their
Class Certificate Balance has been reduced to zero;
(iii) $151,645, sequentially, to the Class 2-A-5 and Class
2-A-6 Certificates, in that order, until their Class Certificate Balances
have been reduced to zero;
(iv) sequentially, to the Class 2-A-1, Class 2-A-5 and Class
2-A-6 Certificates, in that order, until their Class Certificate Balances
have been reduced to zero;
(v) to the Class 2-A-7 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(vi) concurrently, to the Class 2-A-3 and Class 2-A-4
Certificates, pro rata, until their Class Certificate Balances have been
reduced to zero; and
(B) 42.7998150025%, to the Class 2-A-8 Certificates, until
their Class Certificate Balance has been reduced to zero.
(iii) With respect to the Group 3 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support Depletion
Date, the amount distributable to the Group 3 Senior Certificates pursuant to
Section 5.02(a)(ii) for such Distribution Date, will be distributed to the Class
3-A-1 Certificates, until their Class Certificate Balance has been reduced to
zero.
(iv) With respect to the Group 4 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 4 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class 4-A-1 Certificates, until their Class Certificate Balance has been
reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount with respect to a Loan Group available
to be distributed as principal of the Senior Certificates of the Related Group
shall be distributed, concurrently, as principal of such Classes of Senior
Certificates, pro rata, on the basis of their respective Class Certificate
Balances immediately prior to that Distribution Date, until the Class
Certificate Balances thereof are reduced to zero; provided, however, any amounts
allocated to the Class 1-A-8 Certificates pursuant to this paragraph will be
distributed to the Class 1-A-1 Certificates until the Class Certificate Balance
of the Class 1-A-1 Certificates has been reduced to zero.
The Class 1-A-2, Class 1-IO, Class 2-A-2 and Class CB-IO
Certificates are Interest Only Certificates and are not entitled to
distributions in respect of principal.
(v) Notwithstanding the foregoing, on each Distribution Date prior
to the Senior Credit Support Depletion Date but on or after the date on which
the aggregate Class Certificate Balance of the Senior Certificates of a Group
has been reduced to zero, amounts otherwise distributable as principal payments
on the Subordinate Certificates together with the applicable Senior Principal
Distribution Amount will be paid as principal to the Classes of Senior
Certificates of the other Groups in accordance with the priorities set forth for
the applicable Group in (b) (i), (ii), (iii) or (iv) above, provided that on
such Distribution Date (a) the Aggregate Subordinate Percentage for such
Distribution Date is less than twice the initial Aggregate Subordinate
Percentage or (b) the outstanding principal balance of all Mortgage Loans
(including, for this purpose, any Mortgage Loans in foreclosure, any REO
Property and any Mortgage Loan for which the Mortgagor has filed for bankruptcy
after the Closing Date) delinquent 60 days or more (averaged over the preceding
six month period), as a percentage of the aggregate Class Certificate Balance of
the Subordinate Certificates, is equal to or greater than 50%. If the Senior
Certificates of two or more Groups remain outstanding, the distributions
described above will be made to the Senior Certificates of such Groups, pro
rata, in proportion to the aggregate class balance of the Senior Certificates of
each such Group. In addition, after giving effect to the previous sentence, if
on any Distribution Date the aggregate Class Certificate Balance of the Senior
Certificates of a Group is greater than the Adjusted Pool Amount (Non-PO
Portion) of related Loan Group (any such Group, the "Undercollateralized Group"
and any such excess, the "Undercollateralized Amount"), all amounts otherwise
distributable as principal on the Subordinate Certificates pursuant to
5.02(a)(iv)(L), (J), (H), (F), (D) and (B), in that order, will be paid as
principal to the Senior Certificates of the Undercollateralized Group together
with the applicable Senior Principal Distribution Amount in accordance with the
priorities set forth for the applicable Group above under (b)(i), (ii), (iii) or
(iv) until the aggregate Class Certificate Balance of the Senior Certificates of
the Undercollateralized Group equals the Adjusted Pool Amount (Non-PO Portion)
of the Related Loan Group. If two or more Groups are Undercollateralized Groups,
the distributions described above will be made, pro rata, in proportion to the
amount by which the aggregate class balance of the Senior Certificates of each
such Group exceeds the Pool Principal Balance (Non-PO Portion) of the related
Loan Group. Also, the amount of any Class Unpaid Interest Shortfalls and
Component Unpaid Interest Shortfalls with respect to the Undercollateralized
Group (including any Class Unpaid Interest Shortfalls or Component Unpaid
Interest Shortfalls for such Distribution Date) will be paid to the
Undercollateralized Group pursuant to Section 5.02(a)(i) prior to the payment of
any Undercollateralized Amount from amounts otherwise distributable as principal
on the Subordinate Certificates pursuant to Section 5.02(a)(iv)(L), (J), (H),
(F), (D) and (B), in that order. Such amount will be paid to the Senior
Certificates and Components (other than the Class PO Component) of such
Undercollateralized Group in accordance with the priorities set forth in Section
5.02(a)(i) up to their Interest Distribution Amounts or Component Interest
Distribution Amounts for such Distribution Date.
The Class PO Deferred Amounts for the Class PO Components will be
paid from amounts otherwise distributable as principal on the Subordinate
Certificates before any payments are made pursuant to the preceding paragraph.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates (other than the Class CB-IO Certificates) and Accrued
Component Interest for each Class IO Component for such Distribution Date shall
be reduced by such Class' or Component's pro rata share, based on such Class'
Interest Distribution Amount or Component's Component Interest Distribution
Amount for such Distribution Date, without taking into account the allocation
made by this Section 5.02(c), of an amount equal to the sum of (A) Non-Supported
Interest Shortfalls, (B) on and after the Senior Credit Support Depletion Date,
any other Realized Loss on the Mortgage Loans allocable to interest and (C)
Relief Act Reductions incurred on any Mortgage Loans during the calendar month
preceding the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iv), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates that have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Pool Stated Principal Balance (Non-PO Portion) of
the Loan Groups immediately prior to such Distribution Date (for each Class, the
"Fractional Interest") is less than the Original Fractional Interest for such
Class, no distribution of principal will be made to any Classes of Subordinate
Certificates junior to such Class (the "Restricted Classes"), and the Class
Certificate Balances of the Restricted Classes of Subordinate Certificates will
not be used in determining the Pro Rata Share for the Subordinate Certificates
that are not Restricted Classes. If the aggregate Class Certificate Balances of
the Subordinate Certificates that are not Restricted Classes are reduced to
zero, notwithstanding the previous sentence, any funds remaining will be
distributed sequentially to the Subordinate Certificates that are Restricted
Classes in order of their respective numerical Class designations (beginning
with the Class of Subordinate Certificates that is a Restricted Class then
outstanding with the lowest numerical Class designation).
(e) Any amounts distributed to the Class 1-A-1 and Class 2-A-1
Certificates from the applicable Reserve Fund shall be deemed to be a
distribution to such Certificates from the Grantor Trust as payments on a
notional principal contract in the nature of a cap contract written by Banc of
America Securities LLC.
Section 5.03 Allocation of Losses. (a) No later than five (5)
Business Days prior to the related Distribution Date, the Master Servicer shall
inform the Securities Administrator in writing with respect to each Mortgage
Loan: (1) whether any Realized Loss is a Deficient Valuation or a Debt Service
Reduction, (2) of the amount of such loss or Deficient Valuation, or of the
terms of such Debt Service Reduction and (3) of the total amount of Realized
Losses on the Mortgage Loans in each Loan Group. Based on such information, the
Securities Administrator shall determine the total amount of Realized Losses on
the Mortgage Loans in each Loan Group with respect to the related Distribution
Date. Realized Losses shall be allocated to the Certificates by a reduction in
the Class Certificate Balances of the designated Classes pursuant to the
operation of Section 5.03(b).
(b) The Component Balance of the Class PO Component of a Group shall
be reduced on each Distribution Date by the amount, if any, by which the
Component Balance of such Class PO Component (after giving effect to the amounts
to be distributed as a distribution of principal and the allocation of Realized
Losses on such Distribution Date) exceeds the Adjusted Pool Amount (PO Portion)
for such Loan Group for such Distribution Date.
The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced or increased on each Distribution Date by the amount, if any,
necessary such that the aggregate of the Class Certificate Balances of all
outstanding Classes of Certificates (after giving effect to the amount to be
distributed as a distribution of principal and the allocation of the Class PO
Deferred Amounts on such Distribution Date) equals the sum of the Adjusted Pool
Amounts (Non-PO Portion) for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates of a Group in the aggregate
shall be reduced or increased on each Distribution Date by the amount, if any,
necessary such that the aggregate of the Class Certificate Balances of all
outstanding Classes of Senior Certificates of such Group (after giving effect to
the amount to be distributed as a distribution of principal on such Distribution
Date) equals the Adjusted Pool Amount (Non-PO Portion) for the Related Loan
Group for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates of such Group based on the Class Certificate Balances immediately
prior to such Distribution Date until the Class Certificate Balances thereof
have been reduced to zero.
(c) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.03(b) above shall be allocated among
the Certificates of such Class in proportion to their respective Percentage
Interests.
(d) The calculation of the amount to be distributed as principal to
any Class of Subordinate Certificates with respect to a Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the allocation of
any Realized Losses for such Distribution Date; provided, however, the actual
payment of principal to the Classes of Certificates shall be made subsequent to
the allocation of Realized Losses for such Distribution Date. In the event that
after the allocation of Realized Losses for a Distribution Date, the Calculated
Principal Distribution for a Class of Subordinate Certificates is greater than
the Class Certificate Balance of such Class, the excess shall be distributed
first, sequentially, to the Classes of Subordinate Certificates then outstanding
(beginning with the Class of Subordinate Certificates then outstanding with the
lowest numerical designation) until the respective Class Certificate Balance of
each such Class is reduced to zero and then to the Senior Certificates of the
related Group, pro rata, in accordance with the priorities set forth in Section
5.02.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 1-A-4 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 1-A-4 Certificates will be
reduced by the Class 1-A-4 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 1-A-3 Certificates will not
be reduced by the Class 1-A-4 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 1-A-3 Loss Amount exceeds
the Class Certificate Balance of the Class 1-A-4 Certificates prior to any
reduction for the Class 1-A-4 Loss Allocation Amount, such excess will be
distributed in reduction of the Class Certificate Balance of the Class 1-A-3
Certificates. After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 1-A-8 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 1-A-8 Certificates will be
reduced by the Class 1-A-8 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 1-A-1 Certificates will not
be reduced by the Class 1-A-8 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 1-A-1 Loss Amount exceeds
the Class Certificate Balance of the Class 1-A-8 Certificates prior to any
reduction for the Class 1-A-8 Loss Allocation Amount, such excess will be
distributed in reduction of the Class Certificate Balance of the Class 1-A-1
Certificates. After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 2-A-4 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 2-A-4 Certificates will be
reduced by the Class 2-A-4 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 2-A-3 Certificates will not
be reduced by the Class 2-A-4 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 2-A-3 Loss Amount exceeds
the Class Certificate Balance of the Class 2-A-4 Certificates prior to any
reduction for the Class 2-A-4 Loss Allocation Amount, such excess will be
distributed in reduction of the Class Certificate Balance of the Class 2-A-3
Certificates.
Any increase allocated to the Class 1-A-3 Certificates pursuant to
Section 5.03(b) will instead increase the Class Certificate Balance of the Class
1-A-4 Certificates, any increase allocated to the Class 1-A-1 Certificates
pursuant to Section 5.03(b) will instead increase the Class Certificate Balance
of the Class 1-A-8 Certificates and any increase allocated to the Class 2-A-3
Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 2-A-4 Certificates.
(f) Notwithstanding any other provision of this Section 5.03, no
Class Certificate Balance of a Class will be increased on any Distribution Date
such that the Class Certificate Balance of a Class exceeds its Initial Class
Certificate Balance less all distributions of principal previously distributed
in respect of such Class on prior Distribution Dates (excluding in the case of
any Class of Subordinate Certificates any principal otherwise payable to such
Class of Subordinate Certificates but used to pay any Class PO Deferred Amount).
(g) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest as described in Section 5.02(a) and to each Uncertificated
Middle-Tier Interest in an amount equal to the Realized Losses allocated to such
Uncertificated Middle-Tier Interest's Corresponding Upper-Tier Class, Classes or
Component.
Section 5.04 Statements to Certificateholders. (a) Prior to the
Distribution Date in each month, based upon the information provided to the
Securities Administrator on the Master Servicer's Certificate delivered to the
Securities Administrator pursuant to Section 4.01, the Securities Administrator
shall determine the following information with respect to such Distribution
Date:
(i) for each Loan Group, the amount allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(ii) for each Loan Group, the amount allocable to interest, any
Class Unpaid Interest Shortfall and Component Unpaid Interest Shortfall
included in such distribution and any remaining Class Unpaid Interest
Shortfall and Component Unpaid Interest Shortfall after giving effect to
such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates and
the Component Balance of each Component after giving effect to the
distribution of principal on such Distribution Date;
(v) for each Loan Group, the Pool Stated Principal Balance for the
following Distribution Date;
(vi) for each Loan Group, (A) the Senior Percentage, the Senior
Prepayment Percentage, the Subordinate Percentage and the Subordinate
Prepayment Percentage for such Distribution Date and (B) the Senior
Percentage, the Senior Prepayment Percentage, the Subordinate Percentage
and the Subordinate Prepayment Percentage for the following Distribution
Date;
(vii) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to each Loan Group and such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) for each Loan Group, the amount of Periodic Advances included
in the distribution on such Distribution Date and the aggregate amount of
Periodic Advances outstanding as of the close of business on such
Distribution Date;
(x) for each Loan Group, the number and aggregate principal amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or bankruptcy) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90
days and (4) 91 or more days, (B) in foreclosure, as of the close of
business on the last day of the calendar month preceding such Distribution
Date and (C) in bankruptcy, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(xi) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xii) for each Loan Group, the total number and principal balance of
any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiii) for each Loan Group, the aggregate amount of Realized Losses
incurred during the preceding calendar month and for each Group or any
Class PO Deferred Amounts for such Distribution Date;
(xiv) the Notional Amount for each Class of Interest Only
Certificates and the notional amount for each interest only Component for
such Distribution Date;
(xv) for each Loan Group, the Reimbursement Amount;
(xvi) the Yield Maintenance Agreement Payments received from the
Counterparty and the Yield Maintenance Amounts and the Yield Maintenance
Amount Shortfalls paid to the Class 1-A-1 and Class 2-A-1 Certificates;
and
(xvii) for each Loan Group, the amount of Recoveries, the Class PO
Recovery and the Non-PO Recovery.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificate, shall make available to each Holder of a Certificate, each Rating
Agency and the Master Servicer, a statement setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i) and
(ii) of Section 5.04(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish to each Financial Market Service, in electronic or such
other format and media mutually agreed upon by the Securities Administrator, the
Financial Market Service and the Depositor, the information contained in the
statement described in Section 5.04(a) for such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to Certificateholders
and other parties to this Agreement via the Securities Administrator's Internet
website. The Securities Administrator's Internet website shall initially be
located at "xxx.xxxxxxx.xxx." Assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at (000) 000-0000.
Parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Securities Administrator shall have the right to change the
way the monthly statements to Certificateholders are distributed in order to
make such distribution more convenient and/or more accessible to the above
parties and the Securities Administrator shall provide timely and adequate
notification to all above parties regarding any such changes.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall furnish to each Person who at any time
during the calendar year was the Holder of a Certificate, if requested in
writing by such Person, a statement containing the information set forth in
clauses (i) and (ii) of Section 5.04(a), in each case aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the Securities Administrator is required
by this Agreement or the Code, Treasury Regulations or REMIC Provisions to
deliver to the Holders of Certificates, and the Securities Administrator shall
prepare and provide to the Certificateholders (by mail, telephone, or
publication as may be permitted by applicable Treasury Regulations) such other
reasonable information as the Securities Administrator deems necessary or
appropriate or is required by the Code, Treasury Regulations, and the REMIC
Provisions including, but not limited to, (i) information to be reported to the
Holder of the Residual Certificate for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holder of the Residual
Certificate by the Securities Administrator), (ii) information to be provided to
the Holders of Certificates with respect to amounts which should be included as
interest and original issue discount in such Holders' gross income and (iii)
information to be provided to all Holders of Certificates setting forth the
percentage of each REMIC's assets, determined in accordance with Treasury
Regulations using a convention, not inconsistent with Treasury Regulations,
selected by the Securities Administrator in its absolute discretion, that
constitute real estate assets under Section 856 of the Code, and assets
described in Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of each REMIC created hereunder,
nothing contained in this Agreement, including without limitation Section 7.03
hereof, shall be interpreted to require the Securities Administrator
periodically to appraise the fair market values of the assets of the Trust
Estate or to indemnify the Trust Estate or any Certificateholders from any
adverse federal, state or local tax consequences associated with a change
subsequently required to be made in the Depositor's initial good faith
determinations of such fair market values (if subsequent determinations are
required pursuant to the REMIC Provisions) made from time to time.
Section 5.05 Tax Returns and Reports to Certificateholders. (a) For
federal income tax purposes, each REMIC created hereunder shall have a taxable
year ending on December 31st and shall maintain its books on the accrual method
of accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, shall cause to be timely signed by the Trustee, and shall file or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax information returns for each taxable year with
respect to each REMIC created hereunder containing such information at the times
and in the manner as may be required by the Code, the Treasury Regulations or
state or local tax laws, regulations, or rules, and shall furnish or cause to be
furnished to each REMIC created hereunder and the Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby. The Master Servicer shall provide on a timely basis to the
Securities Administrator or its designee such information with respect to the
assets of the Trust Estate as is in its possession and reasonably required by
the Securities Administrator to enable it to perform its obligations under this
Article V. Within 30 days of the Closing Date, the Securities Administrator
shall obtain for each REMIC created hereunder a taxpayer identification number
on Form SS-4 or as otherwise permitted by the Internal Revenue Service, and
shall furnish or cause to be furnished to the Internal Revenue Service, on Form
8811 or as otherwise required by the Code or the Treasury Regulations, the name,
title, address and telephone number of the person that Holders of the
Certificates may contact for tax information relating thereto, together with
such additional information at the time or times and in the manner required by
the Code or the Treasury Regulations. Such federal, state, or local income tax
or information returns shall be signed by the Trustee, or such other Person as
may be required to sign such returns by the Code, the Treasury Regulations or
state or local tax laws, regulations, or rules.
(c) In the first federal income tax return of each REMIC created
hereunder for its short taxable year ending December 31, 2005, REMIC status
shall be elected for such taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be
maintained such records relating to each REMIC created hereunder, including but
not limited to records relating to the income, expenses, assets and liabilities
of the Trust Estate, and the initial fair market value and adjusted basis of the
Trust Estate property and assets determined at such intervals as may be required
by the Code or the Treasury Regulations, as may be necessary to prepare the
foregoing returns, schedules, statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall have the
same duties with respect to the applicable REMIC as those of a "tax matters
partner" under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder
of the Class 1-A-R Certificate is hereby designated as the Tax Matters Person
for the Upper-Tier REMIC, Middle-Tier REMIC and the Lower-Tier REMIC. By its
acceptance of the Class 1-A-R Certificate, such Holder irrevocably appoints the
Securities Administrator as its agent to perform all of the duties of the Tax
Matters Person for the Upper-Tier REMIC, Middle-Tier REMIC and the Lower-Tier
REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator. The Securities Administrator shall afford the Tax
Matters Person, upon reasonable notice during normal business hours, access to
all records maintained by the Securities Administrator in respect of its duties
hereunder and access to officers of the Securities Administrator responsible for
performing such duties. Upon request, the Securities Administrator shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Securities Administrator shall make available to the Tax
Matters Person such books, documents or records relating to the Securities
Administrator's services hereunder as the Tax Matters Person shall reasonably
request. The Tax Matters Person shall not have any responsibility or liability
for any action or failure to act by the Securities Administrator and is not
obligated to supervise the performance of the Securities Administrator under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as any REMIC
created hereunder shall exist, the Trustee, the Securities Administrator, the
Depositor and the Master Servicer shall act in accordance herewith to assure
continuing treatment of each REMIC created hereunder as a REMIC and avoid the
imposition of tax on any REMIC created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in any REMIC created
hereunder within the meaning of Code Section 860D(a)(2) other than the interests
represented by the Regular Certificates, the Residual Certificate, the
Uncertificated Middle-Tier Interests and the Uncertificated Lower-Tier
Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Master Servicer shall not contribute to the Trust Estate and the Trustee
shall not accept property unless substantially all of the property held in each
REMIC constitutes either "qualified mortgages" or "permitted investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property
shall be contributed, or deemed contributed, to any REMIC created hereunder
after the start-up day unless such contribution would not subject the Trust
Estate to the 100% tax on contributions to a REMIC created hereunder after the
start-up day of such REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee, shall
not accept on behalf of any REMIC created hereunder any fee or other
compensation for services and none of the Securities Administrator, the Trustee
or the Master Servicer shall knowingly accept, on behalf of the Trust Estate any
income from assets other than those permitted to be held by a REMIC.
(d) Neither the Securities Administrator, on behalf of the Trustee,
nor the Trustee shall sell or permit the sale of all or any portion of the
Mortgage Loans (other than in accordance with Sections 2.02 or 2.04), unless
such sale is pursuant to a "qualified liquidation" of the applicable REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The Securities Administrator shall maintain books with respect
to the Trust and each REMIC created hereunder on a calendar year taxable year
basis and on an accrual basis.
None of the Master Servicer, the Securities Administrator or the
Trustee shall engage in a "prohibited transaction" (as defined in Code Section
860F(a)(2)), except that, with the prior written consent of the Master Servicer
and the Depositor, the Securities Administrator may engage in the activities
otherwise prohibited by the foregoing paragraphs (b), (c) and (d); provided that
the Master Servicer shall have delivered to the Securities Administrator an
Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on any REMIC created hereunder and will not disqualify any
such REMIC from treatment as a REMIC; and, provided further, that the Master
Servicer shall have demonstrated to the satisfaction of the Securities
Administrator that such action will not adversely affect the rights of the
Holders of the Certificates and the Securities Administrator and that such
action will not adversely impact the rating of the Certificates.
Section 5.09 Determination of LIBOR.On each Rate Determination Date for a
Class of LIBOR Certificates, the Securities Administrator shall determine LIBOR
for the applicable Distribution Date on the basis of the British Bankers'
Association ("BBA") "Interest Settlement Rate" for one-month deposits in U.S.
Dollars as found on Telerate page 3750 as of 11:00 A.M. London time on such Rate
Determination Date. As used herein, "Telerate page 3750" means the display
designated as page 3750 on the Reuters Telerate Service.
If on any Rate Determination Date for a Class of LIBOR Certificates,
the Securities Administrator is unable to determine LIBOR on the basis of the
method set forth in the preceding paragraph, LIBOR for the applicable
Distribution Date will be whichever is higher of (x) LIBOR as determined on the
previous Rate Determination Date for such Class of LIBOR Certificates or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be the rate per annum
which the Securities Administrator determines to be either (A) the arithmetic
mean (rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/16%) of the one-month U.S. Dollar lending rates that New York City
banks selected by the Securities Administrator are quoting, on the relevant Rate
Determination Date, to the principal London offices of at least two leading
banks in the London interbank market or (B) in the event that the Securities
Administrator can determine no such arithmetic mean, the lowest one-month U.S.
Dollar lending rate that the New York City banks selected by the Securities
Administrator are quoting on such Rate Determination Date to leading European
banks.
If on any Rate Determination Date for a Class of LIBOR Certificates,
the Securities Administrator is required but is unable to determine the Reserve
Interest Rate in the manner provided in the preceding paragraph, LIBOR for the
applicable Distribution Date will be LIBOR as determined on the previous Rate
Determination Date for such Class of LIBOR Certificates, or, in the case of the
first Rate Determination Date for which the Securities Administrator is required
to determine LIBOR, 4.36%.
The establishment of LIBOR by the Securities Administrator and the
Securities Administrator's subsequent calculation of the rates of interest
applicable to each of the LIBOR Certificates in the absence of manifest error,
will be final and binding. After a Rate Determination Date, the Securities
Administrator shall provide the Pass-Through Rates of the LIBOR Certificates for
the related Distribution Date to Beneficial Owners or Holders of LIBOR
Certificates who place a telephone call to the Securities Administrator at (301)
815-6600 and make a request therefor.
Section 5.10 Master Servicer, Securities Administrator and Trustee
Indemnification.(a) In the event that any REMIC created hereunder fails to
qualify as a REMIC, loses its status as a REMIC, or incurs federal, state or
local taxes as a result of a prohibited transaction or prohibited contribution
under the REMIC Provisions due solely to (i) the negligent performance by the
Trustee of its duties and obligations set forth herein or (ii) any state, local
or franchise taxes imposed upon the Trust Estate as a result of the location of
the Trustee or any co-trustee, the Trustee shall indemnify the Trust Estate
against any and all losses, claims, damages, liabilities or expenses ("Losses")
resulting from such negligence, including, without limitation, any reasonable
attorneys' fees imposed on or incurred as a result of a breach of the Trustee's
or any co-trustee's covenants.
(b) In the event that any REMIC created hereunder fails to qualify
as a REMIC, loses its status as a REMIC, or incurs federal, state or local taxes
as a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due solely to (i) the negligent performance by the Master
Servicer of its duties and obligations set forth herein or (ii) any state, local
or franchise taxes imposed upon the Trust Estate as a result of the location of
the Master Servicer, the Master Servicer shall indemnify the Trust Estate
against any and all Losses resulting from such negligence, including, without
limitation, any reasonable attorneys' fees imposed on or incurred as a result of
a breach of the Master Servicer's covenants.
(c) In the event that any REMIC created hereunder fails to qualify
as a REMIC, loses its status as a REMIC, or incurs federal, state or local taxes
as a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due solely to (i) the negligent performance by the Securities
Administrator of its duties and obligations set forth herein or (ii) any state,
local or franchise taxes imposed upon the Trust Estate as a result of the
location of the Securities Administrator, the Securities Administrator shall
indemnify the Trust Estate against any and all Losses resulting from such
negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Securities Administrator's
covenants.
Section 5.11 Grantor Trust Administration.(a) The Securities Administrator
shall treat the portions of the Trust Estate consisting of the Reserve Funds and
the Yield Maintenance Agreements and rights with respect thereto as a "grantor
trust" under the Code, and the provisions hereof shall be interpreted
consistently with this treatment. The Securities Administrator shall furnish or
cause to be furnished (i) to the Holders of the Class 1-A-1 and Class 2-A-1
Certificates and (ii) to Banc of America Securities LLC, and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, their allocable shares of income and expenses
with respect to the property held by the Grantor Trust (Yield Maintenance
Amounts and Yield Maintenance Amount Shortfalls, in the case of the Class 1-A-1
and Class 2-A-1 Certificates, and Yield Maintenance Agreement Payments, in the
case of Banc of America Securities LLC), at the time or times and in the manner
required by the Code.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates and the
Subordinate Certificates shall be substantially in the forms attached hereto as
Exhibits 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-XX, 0-X-X,
0-X-0, 0-X-0, 2-A-3, 2-A-4, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, CB-IO,
X-PO, X-0, X-0, X-0, X-0, X-0, B-6 and C (reverse of all Certificates) and
shall, on original issue, be executed by the Securities Administrator and shall
be authenticated and delivered by the Securities Administrator to or upon the
order of the Depositor upon receipt by the Custodian of the documents specified
in Section 2.01. The Classes of Certificates shall be available to investors in
minimum denominations of initial Certificate Balance (or initial notional
amount) and integral multiples in excess thereof set forth in the Preliminary
Statement. The Senior Certificates (other than the Class 1-A-R Certificate) and
the Class B-1, Class B-2 and Class B-3 Certificates shall initially be issued in
book-entry form through the Depository and delivered to the Depository or,
pursuant to the Depository's instructions on behalf of the Depository to, and
deposited with, the Certificate Custodian, and all other Classes of Certificates
shall initially be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates. (a)
The Securities Administrator shall cause to be kept at an office or agency in
the city in which the Corporate Trust Office of the Securities Administrator is
located a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Securities Administrator shall initially serve as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (A) registration of the Book-Entry
Certificates may not be transferred by the Securities Administrator except to
another Depository; (B) the Depository shall maintain book-entry records with
respect to the Certificate Owners and with respect to ownership and transfers of
such Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners, through
the Depository, of the occurrence of such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates")
to such Certificate Owners requesting the same. Upon surrender to the
Securities Administrator of the related Class of Certificates by the
Depository (or by the Certificate Custodian, if it holds such Class on
behalf of the Depository), accompanied by the instructions from the
Depository for registration, the Securities Administrator shall issue the
Definitive Certificates. None of the Master Servicer, the Depositor, the
Securities Administrator or the Trustee shall be liable for any delay in
delivery of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide
the Securities Administrator with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates, the Securities Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit G-1 and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached hereto either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Securities Administrator either (i) a
representation letter in the form attached hereto as Exhibit H from the
transferee of such Certificate, which representation letter shall not be an
expense of the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, or (ii) in the case of any ERISA Restricted Certificate
presented for registration in the name of an employee benefit plan or
arrangement, including an individual retirement account, subject to ERISA, the
Code, or any federal, state or local law ("Similar Law") which is similar to
ERISA or the Code (collectively, a "Plan"), or a trustee or custodian of any of
the foregoing, an Opinion of Counsel in form and substance satisfactory to the
Securities Administrator to the effect that the purchase or holding of such
ERISA Restricted Certificate by or on behalf of such Plan will not constitute or
result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or Similar Law and will not subject the Trustee, the
Depositor, the Securities Administrator or the Master Servicer to any obligation
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Securities Administrator, the Trustee or the
Master Servicer. Any transferee of an ERISA Restricted Certificate that does not
comply with either clause (i) or (ii) of the preceding sentence will be deemed
to have made one of the representations set forth in Exhibit H. For purposes of
clause (i) of the second preceding sentence, such representation shall be deemed
to have been made to the Certificate Registrar by the acceptance by a
Certificate Owner of a Book-Entry Certificate of the beneficial interest in any
such Class of ERISA-Restricted Certificates, unless the Certificate Registrar
shall have received from the transferee an alternative representation acceptable
in form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA Restricted Certificate to or
on behalf of a Plan without the delivery to the Securities Administrator of an
Opinion of Counsel satisfactory to the Securities Administrator as described
above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates made through
the book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA Restricted Certificate
that is in fact not permitted by this Section 6.02 or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form attached hereto as Exhibit I from the proposed
transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the Securities Administrator with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the transferee delivers
to both the transferor and the Securities Administrator an Opinion of
Counsel from a nationally-recognized tax counsel to the effect that such
transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as
the transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by the
Master Servicer, will provide to the Internal Revenue Service, and to the
Persons specified in Section 860E(e)(3) and (6) of the Code, information
needed to compute the tax imposed under Section 860E(e) of the Code on
transfers of residual interests to disqualified organizations. The
expenses of the Securities Administrator under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Securities
Administrator, the Trustee, the Depositor and the Certificate Registrar such
security or indemnity reasonably satisfactory to each, to save each of them
harmless, then, in the absence of actual notice to the Securities Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Securities Administrator shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator and the Certificate Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners.Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Trustee, the Securities Administrator, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the Certificate Registrar may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator, the Certificate Registrar or any agent of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator or the
Certificate Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer.The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by the Depositor and the Master
Servicer herein. By way of illustration and not limitation, the Depositor is not
liable for the master servicing and administration of the Mortgage Loans, nor is
it obligated by Section 8.01 to assume any obligations of the Master Servicer or
to appoint a designee to assume such obligations, nor is it liable for any other
obligation hereunder that it may, but is not obligated to, assume unless it
elects to assume such obligation in accordance herewith.
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer.The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a separate entity under the laws governing
its organization, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac.
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer
and Others.None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Master Servicer shall
be under any liability to the Trust Estate or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer shall be indemnified
by the Trust Estate and held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither of the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its respective duties under this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor or the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Estate (except any expenses, costs
or liabilities incurred as a result of any breach of representations or
warranties of the related party or by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties of such party hereunder or by
reason of reckless disregard of obligations and duties of such party hereunder),
and the Depositor and the Master Servicer shall each be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit
in the Master Servicer Custodial Account as provided by Section 3.11.
Section 7.04 Depositor and Master Servicer Not to Resign.Subject to the
provisions of Section 7.02, neither the Depositor nor the Master Servicer shall
resign from its respective obligations and duties hereby imposed on it except
upon determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Depositor or the Master Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Securities Administrator. No such resignation by
the Master Servicer shall become effective until the Securities Administrator or
a successor Master Servicer shall have assumed such Master Servicer's
responsibilities and obligations in accordance with Section 8.05 hereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.If any one of the following events ("Events
of Default") shall occur and be continuing:
(a) any failure by the Master Servicer to remit amounts to the
Securities Administrator for deposit into the Certificate Account in the amount
and manner provided herein so as to enable the Securities Administrator to
distribute to Holders of Certificates any payment required to be made under the
terms of such Certificates and this Agreement which continues unremedied by 3:00
P.M. New York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of the Master
Servicer set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities Administrator, the Trustee
or the Depositor, or to the Master Servicer, the Depositor, the Securities
Administrator and the Trustee by the Holders of Certificates evidencing Voting
Rights aggregating not less than 25% of all Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or of or relating to substantially all of its property; or
the Master Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default is
actually known by the Trustee or the Depositor and shall not have been remedied
by the Master Servicer, either the Trustee or the Depositor may, and at the
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51% of all Certificates affected thereby shall, by notice then
given in writing to the Master Servicer (and to the Trustee, if given by the
Depositor, and to the Depositor, if given by the Trustee), terminate all of the
rights and obligations of the Master Servicer under this Agreement. On or after
the receipt by the Master Servicer of such written notice and subject to Section
8.05, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section
8.01 and Section 8.05(a), unless and until such time as the Trustee shall
appoint a successor Master Servicer pursuant to Section 8.05, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the applicable
Mortgage Loans and related documents, or otherwise, including, without
limitation, the recordation of the assignments of the applicable Mortgage Loans
to it. The Master Servicer agrees to cooperate with the Trustee in effecting the
termination of the responsibilities and rights of the Master Servicer hereunder,
including, without limitation, the transfer to the Trustee for the
administration by it of all cash amounts that have been deposited by the Master
Servicer in the Master Servicer Custodial Account or thereafter received by the
Master Servicer with respect to the Mortgage Loans. Upon obtaining notice or
knowledge of the occurrence of any Event of Default, the Person obtaining such
notice or knowledge shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency. All costs and expenses (including attorneys'
fees) incurred in connection with transferring the master servicing data and
information to the successor Master Servicer and amending this Agreement to
reflect such succession as Master Servicer pursuant to this Section 8.01 shall
be paid by the predecessor Master Servicer. Notwithstanding the termination of
the Master Servicer pursuant hereto, the Master Servicer shall remain liable for
any causes of action arising out of any Event of Default occurring prior to such
termination, subject to the terms and conditions of this Agreement.
Section 8.02 Remedies of Trustee.During the continuance of any Event of
Default, so long as such Event of Default shall not have been remedied, the
Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee During
Event of Default.During the continuance of any Event of Default, Holders of
Certificates evidencing Voting Rights aggregating not less than 25% (or such
other percentage as may be required herein) of each Class of Certificates
affected thereby may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement; provided, however, that
the Trustee shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (a) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto, and (b) the terminating of the
Master Servicer or any successor Master Servicer from its rights and duties as
servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Master Servicer and upon
Event of Xxxxxxx.Xx the event that a Responsible Officer of the Trustee shall
have actual knowledge of any failure of the Master Servicer specified in Section
8.01(a) or (b) which would become an Event of Default upon such Master
Servicer's failure to remedy the same after notice, the Trustee shall give
notice thereof to the Master Servicer. If a Responsible Officer of the Trustee
shall have knowledge of an Event of Default, the Trustee shall give prompt
written notice thereof to the Certificateholders in accordance with Section
8.01.
Section 8.05 Trustee to Act; Appointment of Successor.(a) Within 90 days
of the time the Master Servicer (and the Trustee if such notice of termination
is delivered by the Depositor) receives a notice of termination pursuant to
Section 8.01, the Trustee (or other named successor) shall be the successor in
all respects to the Master Servicer in its capacity as master servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Master Servicer by the terms and provisions hereof and thereof, as
applicable, or shall appoint a successor pursuant to Section 3.07.
Notwithstanding the foregoing, (i) the parties hereto agree that the Trustee, in
its capacity as successor Master Servicer, immediately will assume all of the
obligations of the Master Servicer to make advances (including, without
limitation, Advances pursuant to Section 3.21) under this Agreement, (ii) the
Trustee, in its capacity as successor Master Servicer, shall not be responsible
for the lack of information and/or documents that it cannot obtain through
reasonable efforts and (iii) under no circumstances shall any provision of this
Agreement be construed to require the Trustee, acting in its capacity as
successor to the Master Servicer in its obligation to make advances (including
Advances pursuant to Section 3.21) to advance, expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder if it shall have reasonable grounds for believing that such funds are
non-recoverable. Subject to Section 8.05(b), as compensation therefor, the
Trustee shall be entitled to such compensation as the terminated Master Servicer
would have been entitled to hereunder if no such notice of termination had been
given, except for those amounts due to the Master Servicer as reimbursement for
Advances previously made or amounts previously expended and are otherwise
reimbursable hereunder. Notwithstanding the above, the Trustee may, if it shall
be unwilling so to act, or shall, if it is legally unable so to act, appoint, or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution having a net worth of not less than $10,000,000 as
the successor to the terminated Master Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder; provided, however, that any such institution appointed as a
successor Master Servicer shall not, as evidenced in writing by each Rating
Agency, adversely affect the then current rating of any Class of Certificates
immediately prior to the termination of the terminated Master Servicer. The
appointment of a successor Master Servicer shall not affect any liability of the
predecessor Master Servicer which may have arisen under this Agreement prior to
its termination as Master Servicer, nor shall any successor Master Servicer be
liable for any acts or omissions of the predecessor Master Servicer or for any
breach by the Master Servicer of any of its representations or warranties
contained herein or in any related document or agreement. Pending appointment of
a successor to a terminated Master Servicer hereunder, unless the Trustee is
prohibited by law from so acting, the Trustee shall act in such capacity as
provided above. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. All Master Servicing Transfer Costs shall be paid by the predecessor
Master Servicer upon presentation of reasonable documentation of such costs, and
if such predecessor Master Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Master Servicer or the Trustee
(in which case the successor Master Servicer or the Trustee shall be entitled to
reimbursement therefor from the assets of the Trust).
(b) In connection with the appointment of a successor Master
Servicer or the assumption of the duties of the Master Servicer, as specified in
Section 8.05(a), the Trustee may make such arrangements for the compensation of
such successor as it and such successor shall agree; provided, however, that
such compensation shall not exceed the compensation of the Master Servicer being
replaced.
(c) Any successor, including the Trustee, to the Master Servicer as
master servicer shall during the term of its service as master servicer maintain
in force (i) a policy or policies of insurance covering errors and omissions in
the performance of its obligations as master servicer hereunder and (ii) a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders.Upon any termination or
appointment of a successor to the Master Servicer pursuant to this Article VIII,
the Securities Administrator shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE, THE CUSTODIAN AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.(a) The
Trustee and the Securities Administrator, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, each undertake to perform such duties and only such duties as are
specifically set forth in this Agreement as duties of the Trustee and the
Securities Administrator, respectively. In case an Event of Default has occurred
of which a Responsible Officer of the Trustee shall have actual knowledge (which
has not been cured or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise as a reasonably prudent investor would exercise or use under
the circumstances in the conduct of such investor's own affairs. In case an
Event of Default has occurred of which a Responsible Officer of the Securities
Administrator shall have actual knowledge (which has not been cured or waived),
the Securities Administrator shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in their
exercise as a reasonably prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
the Trustee and the Securities Administrator shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Securities Administrator
and, in the absence of bad faith on the part of the Trustee and the
Securities Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and the Securities Administrator by the Depositor
or the Master Servicer and which on their face, do not contradict the
requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) and the Securities
Administrator (in its individual capacity) shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Certificateholders as
provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default
specified in clauses (a) and (b) of Section 8.01 or an Event of Default
under clauses (c) and (d) of Section 8.01 unless a Responsible Officer of
the Trustee assigned to and working in the Corporate Trust Office of the
Trustee obtains actual knowledge of such failure or event or any
Responsible Officer of the Trustee receives written notice of such failure
or event at its Corporate Trust Office from the Master Servicer, the
Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any
default specified in clauses (a) and (b) of Section 8.01 or an Event of
Default under clauses (c) and (d) of Section 8.01 unless a Responsible
Officer of the Securities Administrator assigned to and working in the
Corporate Trust Office of the Securities Administrator obtains actual
knowledge of such failure or event or any Responsible Officer of the
Securities Administrator receives written notice of such failure or event
at its Corporate Trust Office from the Master Servicer, the Trustee, the
Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05 in respect of the
Trustee, no provision in this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise
incur any personal financial liability in the performance of any of its
duties as Trustee or Securities Administrator hereunder, or in the
exercise of any of its rights or powers, if the Trustee or the Securities
Administrator shall have reasonable grounds for believing that repayment
of funds or adequate indemnity or security satisfactory to it against such
risk or liability is not reasonably assured to it and none of the
provisions contained in this Agreement shall in any event require the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may request and
rely upon and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and the
manner of obtaining consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to the reasonable
regulations as the Trustee and the Securities Administrator, as applicable, may
prescribe;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it by
this Agreement or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee or the Securities
Administrator, as the case may be, reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred therein
or thereby; nothing contained herein shall, however, relieve the Trustee or the
Securities Administrator of the obligation, upon the occurrence of an Event of
Default (which has not been cured or waived), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default which may have occurred,
neither the Trustee nor the Securities Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing so to do
by Holders of Certificates of any Class evidencing, as to such Class, Percentage
Interests, aggregating not less than 50%; provided, however, that if the payment
within a reasonable time to the Trustee or the Securities Administrator of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities Administrator,
as applicable, not reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms of
this Agreement, the Trustee or the Securities Administrator, as the case may be,
may require reasonable indemnity or security satisfactory to it against such
expense or liability or payment of such estimated expenses as a condition to so
proceeding;
(vi) The Trustee and the Securities Administrator may each execute
any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, accountants, custodian or
independent contractor; and
(vii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities Administrator
shall be answerable for other than its gross negligence or willful misconduct in
the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the execution of, and the authentication on the
Certificates) shall be taken as the statements of the Depositor or the Master
Servicer, as applicable, and neither the Trustee nor the Securities
Administrator assumes responsibility for their correctness. Neither the Trustee
nor the Securities Administrator makes any representations as to the validity or
sufficiency of this Agreement or of the Certificates or any Mortgage Loans save
that the Trustee and the Securities Administrator represent that, assuming due
execution and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
subject, as to enforcement of remedies, to applicable insolvency, receivership,
moratorium and other laws affecting the rights of creditors generally, and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law).
Neither the Trustee nor the Securities Administrator shall at any
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority or for or with respect to the sufficiency of the Trust
or its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation: the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon (other than if the Trustee shall assume the duties of
the Master Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as the successor to the Master Servicer); the validity
of the assignment of any Mortgage Loan to the Trustee or of any intervening
assignment; the completeness of any Mortgage Loan; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as successor to the Master Servicer); the
compliance by the Depositor or the Master Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation; any investment of monies by or
at the direction of the Master Servicer or any loss resulting therefrom, it
being understood that the Trustee and the Securities Administrator shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, the Master Servicer (other than
if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor to the Master Servicer), or any Mortgagor; any action of the Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor to the Master Servicer) taken in the name of the
Securities Administrator; the failure of the Master Servicer to act or perform
any duties required of it as agent of the Trust or the Securities Administrator
hereunder; or any action by the Trustee or the Securities Administrator taken at
the instruction of the Master Servicer (other than if the Trustee shall assume
the duties of the Master Servicer pursuant to Section 8.05 and thereupon only
for the acts or omissions of the Trustee as successor to the Master Servicer);
provided, however, that the foregoing shall not relieve the Trustee or the
Securities Administrator of its obligation to perform its duties under this
Agreement. The Trustee shall execute and file any financing or continuation
statement in any public office at any time required to maintain the perfection
of any security interest or lien granted to it hereunder.
Section 9.04 Trustee and Securities Administrator May Own Certificates.
Each of the Trustee and the Securities Administrator in their individual or any
other capacities may become the owner or pledgee of Certificates with the same
rights it would have if it were not Trustee or the Securities Administrator and
may otherwise deal with the Master Servicer or any of its affiliates with the
same right it would have if it were not the Trustee or the Securities
Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator. The Trustee and the Securities Administrator hereunder shall at
all times be (a) an institution the deposits of which are fully insured by the
FDIC and (b) a corporation or banking association organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000.00 and subject to supervision or
examination by Federal or State authority and (c) with respect to every
successor trustee or securities administrator hereunder either an institution
(i) the long-term unsecured debt obligations of which are rated at xxxxx "X0" by
Moody's and "A" by S&P or (ii) whose serving as Trustee or Securities
Administrator hereunder would not result in the lowering of the ratings
originally assigned to any Class of Certificates. The Trustee shall not be an
affiliate of the Depositor, the Master Servicer or the Servicer. If such
corporation or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.05, the combined
capital and surplus of such corporation or banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The principal office of the Trustee and the Securities
Administrator (other than the initial Trustee or Securities Administrator) shall
be in a state with respect to which an Opinion of Counsel has been delivered to
such Trustee at the time such Trustee or Securities Administrator is appointed
Trustee or Securities Administrator to the effect that the Trust will not be a
taxable entity under the laws of such state. In case at any time the Trustee or
the Securities Administrator shall cease to be eligible in accordance with the
provision of this Section 9.05, the Trustee or the Securities Administrator, as
the case may be, shall resign immediately in the manner and with the effect
specified in Section 9.06.
The Securities Administrator (i) may not be an originator, the
Master Servicer, the Servicer, the Depositor or an affiliate of the Depositor
unless the Securities Administrator is in an institutional trust department,
(ii) must be authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must be rated at least "P-1" by Moody's
and "A-1" by S&P (or such other rating acceptable to Moody's and S&P pursuant to
a ratings confirmation). If no successor Securities Administrator shall have
been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
this Section 9.05, then the Trustee shall perform the duties of the Securities
Administrator pursuant to this Agreement. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, an
institution qualified under Section 9.05 hereof as the successor to the
Securities Administrator hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of a Securities Administrator hereunder;
provided, however, that any such institution appointed as successor Securities
Administrator shall not, as evidenced in writing by each Rating Agency,
adversely affect the then current rating of any Class of Certificates
immediately prior to the termination of the Securities Administrator. The
Trustee shall notify the Rating Agencies of any change of the Securities
Administrator.
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator.The Trustee or the Securities Administrator may at any time resign
and be discharged from the trust hereby created by giving written notice thereof
to the Master Servicer and the Depositor and mailing a copy of such notice to
all Holders of record. The Trustee or the Securities Administrator, as
applicable, shall also mail a copy of such notice of resignation to each Rating
Agency. Upon receiving such notice of resignation, the Depositor shall use its
best efforts to promptly appoint a mutually acceptable successor Trustee or
Securities Administrator, as applicable, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and one copy to the successor Trustee
or Securities Administrator, as applicable. If no successor Trustee or
Securities Administrator, as the case may be, shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee or Securities Administrator may petition
any court of competent jurisdiction for the appointment of a successor Trustee
or Securities Administrator.
If at any time the Trustee or Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.05 and shall fail
to resign after written request therefor by the Master Servicer, or if at any
time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or the Securities Administrator or of their respective property shall be
appointed, or any public officer shall take charge or control of the Trustee or
the Securities Administrator or of their respective property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Master Servicer
may remove the Trustee or the Securities Administrator, as the case may be, and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee or the Securities
Administrator, as applicable, so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the
Voting Rights may at any time remove the Trustee or the Securities Administrator
by written instrument or instruments delivered to the Master Servicer and the
Trustee or the Securities Administrator, as applicable; the Master Servicer
shall thereupon use their best efforts to appoint a mutually acceptable
successor Trustee or Securities Administrator, as the case may be, in accordance
with this Section 9.06.
Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee pursuant to any of the
provisions of this Section 9.06 shall become effective upon acceptance of
appointment by the successor Trustee or Securities Administrator, as the case
may be, as provided in Section 9.07.
Section 9.07 Successor Trustee or Securities Administrator.Any successor
Trustee or successor Securities Administrator appointed as provided in Section
9.06 shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor Trustee or Securities Administrator, as applicable, an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee or Securities Administrator shall become effective
and such successor Trustee or Securities Administrator, as the case may be,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee or Securities Administrator, as
applicable, herein.
No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.07 unless at the time of such
appointment such successor Trustee or Securities Administrator, as the case may
be, shall be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicer shall cooperate to mail notice of the succession of such Trustee or
Securities Administrator, as the case may be, hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register and to each
Rating Agency. If the Master Servicer fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee or Securities
Administrator, the successor Trustee or Securities Administrator, as the case
may be, shall cause such notice to be mailed at the expense of the Master
Servicer.
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator.Any corporation or banking association into which either the
Trustee or the Securities Administrator may be merged or converted or with which
it may be consolidated, or any corporation or banking association resulting from
any merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.Notwithstanding
any of the provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any Mortgaged Property may at the time
be located or for any other reason, the Master Servicer and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee as co-trustee or separate
trustee of all or any part of the Trust Estate, and to vest in such Person or
Persons, in such capacity, such title to the Trust Estate, or any part thereof,
and, subject to the other provision of this Section 9.09, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable. If one or both of the Master Servicer and the
Trustee shall not have joined in such appointment within ten days after the
receipt by it of a request to do so, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
9.05 and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.07. The
Securities Administrator shall be responsible for the fees of any co-trustee or
separate trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.09, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by such separate trustee
or co-trustee at the direction of the Trustee. No trustee hereunder shall be
held personally liable by reason of any act or omission of any other trustee
hereunder; provided, however, that no appointment of a co-trustee or separate
trustee hereunder shall relieve the Trustee of its obligations hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents.The Securities Administrator may
appoint one or more authenticating agents ("Authenticating Agents") which shall
be authorized to act on behalf of the Securities Administrator in authenticating
or countersigning Certificates. Initially, the Authenticating Agent shall be
Xxxxx Fargo Bank, N.A. Wherever reference is made in this Agreement to the
authentication or countersigning of Certificates by the Securities Administrator
or the Securities Administrator's certificate of authentication or
countersigning, such reference shall be deemed to include authentication or
countersigning on behalf of the Securities Administrator by an Authenticating
Agent and a certificate of authentication or countersignature executed on behalf
of the Securities Administrator by an Authenticating Agent. Each Authenticating
Agent must be acceptable to the Master Servicer and must be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any State, having a place of business in New York, New
York, having a combined capital and surplus of at least $15,000,000, authorized
under such laws to do a trust business and subject to supervision or examination
by Federal or State authorities.
Any corporation or banking association into which any Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Securities Administrator or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Securities Administrator and to the Master
Servicer. The Securities Administrator may at any time terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case, at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Securities Administrator may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 9.11 Securities Administrator's Fees and Expenses, Custodian's
Fees and Expenses and Trustee's Fees and Expenses; Indemnification.The Trustee,
as compensation for its services hereunder, shall be entitled to a fee in an
amount agreed upon between the Trustee and the Securities Administrator, payable
by the Securities Administrator out of its own funds and not out of any funds of
the Trust Estate. The Custodian, as compensation for its services hereunder and
under the Custodial Agreement, shall be entitled to a fee in an amount agreed
upon between the Securities Administrator and the Custodian, payable by the
Securities Administrator out of its own funds and not out of any funds of the
Trust Estate. The Securities Administrator shall be entitled to investment
income from amounts on deposit in the Certificate Account as compensation for
its services hereunder. The Trustee, the Custodian and the Securities
Administrator, as the case may be, and any director, officer, employee or agent
of the Trustee, the Custodian or the Securities Administrator, as the case may
be, shall be indemnified and held harmless by the Trust against any claims,
damage, loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with or arising from or relating to (i) this Agreement,
(ii) the Certificates, or (iii) the performance of any of the Custodian's, the
Trustee's or the Securities Administrator's, as the case may be, duties
hereunder or under the Custodial Agreement, as applicable, other than any
claims, damage, loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of any of the
Custodian's, Trustee's or Securities Administrator's, as the case may be, duties
hereunder or the Custodial Agreement, as applicable, (b) resulting from any tax
or information return which was prepared by, or should have been prepared by,
the Master Servicer and (c) arising out of the transfer of any ERISA-Restricted
Certificate or the Residual Certificate not in compliance with ERISA. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, the Custodian or the Securities Administrator, and
except for any such expense, disbursement or advance as may arise from the
Trustee's, the Custodian's or the Securities Administrator's gross negligence,
bad faith or willful misconduct, the Trust shall reimburse the Trustee, the
Custodian and the Securities Administrator for all reasonable expenses,
disbursements and advances incurred or made by the Trustee, the Custodian or the
Securities Administrator in accordance with any of the provisions of this
Agreement or the Custodial Agreement, as applicable, to the extent permitted by
Treasury Regulations Section 1.860G-1(b)(3)(ii) and (iii). Except as otherwise
provided herein, none of the Trustee, the Custodian or the Securities
Administrator shall be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee, the Custodian or the Securities
Administrator, as applicable, in the ordinary course of its duties as Trustee,
Custodian or Securities Administrator, Certificate Registrar or Paying Agent
hereunder or for any other expenses. The provisions of this Section 9.11 shall
survive the termination of this Agreement or the resignation or removal of the
Trustee, the Custodian or the Securities Administrator, as applicable, hereunder
or under the Custodial Agreement, as applicable.
Section 9.12 [Reserved]
Section 9.13 Paying Agents. The Securities Administrator may appoint one
or more Paying Agents (each, a "Paying Agent") which shall be authorized to act
on behalf of the Securities Administrator in making withdrawals from the
Certificate Account and distributions to Certificateholders as provided in
Section 3.09 and Section 5.02. Wherever reference is made in this Agreement to
the withdrawal from the Certificate Account by the Securities Administrator,
such reference shall be deemed to include such a withdrawal on behalf of the
Securities Administrator by a Paying Agent. Initially, the Paying Agent shall be
Xxxxx Fargo Bank, N.A. Whenever reference is made in this Agreement to a
distribution by the Securities Administrator or the furnishing of a statement by
the Securities Administrator, such reference shall be deemed to include such a
distribution or furnishing on behalf of the Securities Administrator by a Paying
Agent. Each Paying Agent shall provide to the Securities Administrator such
information concerning the Certificate Account as the Securities Administrator
shall request from time to time. Each Paying Agent must be reasonably acceptable
to the Master Servicer and must be a corporation or banking association
organized and doing business under the laws of the United States of America or
of any state, having (except in the case of the Trustee or the Securities
Administrator) a principal office and place of business in New York, New York,
having a combined capital and surplus of at least $15,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities. Any fees and expenses (but not including any
indemnity payments) of a Paying Agent appointed pursuant to this Agreement shall
be payable by the Securities Administrator out of its own funds and not out of
any funds in the Trust Estate.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the Master
Servicer; provided that the Paying Agent has returned to the Certificate Account
or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Certificate Account.
The Securities Administrator may, upon prior written approval of the Master
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the Master Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Securities
Administrator may appoint, upon prior written approval of the Master Servicer, a
successor Paying Agent, shall give written notice of such appointment to the
Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Paying Agent. The Securities Administrator shall remain liable for any
duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability.The Certificates are executed by the
Securities Administrator, not in its individual capacity but solely as
Securities Administrator of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the undertakings
and agreements made on the part of the Securities Administrator in the
Certificates is made and intended not as a personal undertaking or agreement by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates.All rights of action and claims under this
Agreement or the Certificates may be prosecuted and enforced by the Trustee or
the Securities Administrator without the possession of any of the Certificates
or the production thereof in any proceeding relating thereto, and such preceding
instituted by the Trustee or the Securities Administrator shall be brought in
its own name or in its capacity as Trustee or Securities Administrator. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
Section 9.16 Suits for Xxxxxxxxxxx.Xx case an Event of Default or other
default by the Master Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement.The Trustee shall be relieved of,
and each Certificateholder hereby waives, any requirement of any jurisdiction in
which the Trust, or any part thereof, may be located that the Trustee post a
bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans.Subject to Section 10.02, the respective obligations and responsibilities
of the Depositor, the Master Servicer, the Securities Administrator and the
Trustee created hereby (other than the obligation of the Securities
Administrator to make certain payments to Certificateholders after the Final
Distribution Date and to send certain notices as hereinafter set forth and the
obligations of the Securities Administrator pursuant to Sections 5.04(b) and
5.05(b)) shall terminate upon the last action required to be taken by the
Securities Administrator on the Final Distribution Date pursuant to this Article
X following the earlier of (a) the purchase of all the Mortgage Loans and all
REO Property remaining in the Trust Estate by the Servicer at a price equal to
the sum of (i) 100% of the Stated Principal Balance of each Mortgage Loan (other
than any Mortgage Loan as to which REO Property has been acquired and whose fair
market value is included pursuant to clause (ii) below) and (ii) the fair market
value of such REO Property, plus any Class Unpaid Interest Shortfall for any
Class of Certificates as well as any accrued and unpaid interest through the
last day of the month of such purchase at the related Mortgage Interest Rate on
the Stated Principal Balance of each Mortgage Loan (including any Mortgage Loan
as to which REO Property has been acquired) or (b) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Estate and the disposition of all REO Property. Fair
market value for the purposes of this paragraph will be determined by the
Servicer exercising its purchase right as of the close of business on the third
(3rd) Business Day next preceding the date upon which such notice of the
exercise of any purchase right is furnished to Certificateholders pursuant to
the sixth paragraph of this Section 10.01.
The Servicer may not exercise its purchase option for the Mortgage
Loans until all Reimbursement Amounts for the Mortgage Loans have been paid. The
Securities Administrator shall notify the Seller, upon notice of the Servicer's
intent to exercise its purchase option of any Reimbursement Amount outstanding.
Regardless of the foregoing, in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The right of the Servicer to purchase the Mortgage Loans is
conditioned upon the aggregate Stated Principal Balance of the Mortgage Loans
being less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans.
If such right is exercised by the Servicer, the Custodian shall,
promptly following payment of the purchase price, release to the Servicer or its
designee, the Mortgage Files pertaining to such Mortgage Loans being purchased.
Notice of the exercise of any purchase option by the Servicer and
notice of any termination of the Trust or any portion of the Trust, specifying
the Final Distribution Date or the applicable Distribution Date, upon which the
applicable Certificateholders may surrender their Certificates to the Securities
Administrator for payment of the final distribution and for cancellation, shall
be given promptly by the Securities Administrator by letter to the
Certificateholders mailed not earlier than the 10th day and not later than the
15th day of the month next preceding the month of such final distribution
specifying (1) the Final Distribution Date or the applicable Distribution Date,
upon which final payment of the Certificates will be made upon presentation and
surrender of such Certificates at the office or agency of the Securities
Administrator therein designated, (2) the amount of any such final payment and
(3) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
applicable Certificates at the office or agency of the Securities Administrator
therein specified. Upon the exercise of its purchase option, the Servicer shall
remit to the Securities Administrator for deposit to the Certificate Account on
or before the Final Distribution Date or the applicable Distribution Date, in
immediately available funds an amount equal to the amount necessary to make the
amount, if any, on deposit in the Certificate Account on such Final Distribution
Date or Distribution Date, as applicable, equal to the purchase price for the
related assets of the Trust Estate or any portion of the Trust Estate computed
as above provided together with a statement as to the amount to be distributed
on each applicable Class of Certificates pursuant to the next succeeding
paragraph.
Upon presentation and surrender of the applicable Certificates, the
Securities Administrator shall cause to be distributed to Certificateholders of
each Class, in the order set forth in Section 5.02 hereof, on the Final
Distribution Date or the applicable Distribution Date, and in proportion to
their respective Percentage Interests, with respect to Certificateholders of the
same Class, an amount equal to (I) as to each such Class of Certificates, the
Class Certificate Balance thereof plus (a) accrued interest thereon in the case
of an interest-bearing Certificate and (b) the applicable Class PO Deferred
Amount with respect to the Class PO Components and (II) as to the Class 1-A-R
Certificate, the amounts, if any, which remain on deposit (or are deemed to
remain on deposit) in the Upper-Tier Certificate Sub-Account, the Middle-Tier
Certificate Sub-Account and the Certificate Account, respectively (other than
the amounts retained to meet claims) after application pursuant to clause (I)
above. An amount shall be distributed in respect of interest and principal to
the Uncertificated Lower-Tier Interests and the Uncertificated Middle-Tier
Interests in the same manner as principal and interest are distributed to the
Uncertificated Lower-Tier Interests and the Uncertificated Middle-Tier
Interests, respectively, as provided in Section 5.02.
If the applicable Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Securities Administrator shall on such date cause all
funds in the Certificate Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Securities
Administrator in an Eligible Account for the benefit of such Certificateholders
and the Securities Administrator shall give a second written notice to the
remaining applicable Certificateholders to surrender their Certificates for
cancellation and receive a final distribution with respect thereto. If within
one (1) year after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Securities Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining applicable Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds on deposit in
such Eligible Account.
Section 10.02 Additional Termination Requirements.(a) If the Servicer
exercises its purchase option as provided in Section 10.01, the Trust shall be
terminated in accordance with the following additional requirements, unless the
Securities Administrator and the Trustee have received an Opinion of Counsel to
the effect that the failure of the Trust to comply with the requirements of this
Section 10.02 will not (i) result in the imposition of taxes on "prohibited
transactions" or "prohibited contributions" in respect of any REMIC created
hereunder as defined in the REMIC Provisions, or (ii) cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that any related
Certificates are outstanding:
(i) The Securities Administrator shall specify the first day in the
90-day liquidation period in a statement attached to each REMIC's final
tax return pursuant to Treasury Regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder;
(ii) During such 90-day liquidation period, and at or prior to the
time of making of the final payment on the Certificates, the Securities
Administrator shall sell all of the assets of the Trust Estate to the
Servicer for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Securities Administrator shall distribute or credit, or
cause to be distributed or credited to the Holder of the Residual
Certificate all cash on hand in the Trust Estate (other than cash retained
to meet claims), and the Trust shall terminate at that time.
(b) By its acceptance of the Residual Certificate, the Holder
thereof hereby agrees to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor, the
Trustee or the Securities Administrator.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.This Agreement may be amended from time to time by
the Depositor, the Master Servicer, the Securities Administrator and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity or mistake, (ii) to correct or supplement any provisions herein or
therein which may be inconsistent with any other provisions of this Agreement,
any amendment to this Agreement or the related Prospectus Supplement, (iii) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of any REMIC created hereunder as a
REMIC at all times that any related Certificates are outstanding or to avoid or
minimize the risk of the imposition of any tax on any REMIC created hereunder
pursuant to the Code that would be a claim against the Trust Estate, provided
that (a) the Trustee and the Securities Administrator have received an Opinion
of Counsel to the effect that such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and (b) such action shall not, as evidenced by such Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate Account
provided that (a) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
and (b) such change shall not adversely affect the then-current rating of the
Senior Certificates, Class B-1, Class B-2, Class B-3, Class B-4 or Class B-5
Certificates as evidenced by a letter from each Rating Agency rating such
Certificates to such effect and (v) to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, provided that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Certificateholders and no Opinion of Counsel to that effect
shall be required if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee and
the Holders of Certificates of each Class of Certificates which is affected by
such amendment, evidencing, as to each such Class of Certificates, Percentage
Interests aggregating not less than 66-2/3%, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of such
Certificates; provided, however, that no such amendment shall (A) reduce in any
manner the amount of, or delay the timing of, collections of payments on
Mortgage Loans or distributions which are required to be made on any Certificate
without the consent of the Holder of such Certificate or (B) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the Holders of all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee and the Securities Administrator with an Opinion of Counsel
stating whether such amendment would adversely affect the qualification of any
REMIC created hereunder as a REMIC and notice of the conclusion expressed in
such Opinion of Counsel shall be included with any such solicitation.
Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Securities Administrator may prescribe.
Section 11.02 Recordation of Agreement; Counterparts.This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Securities Administrator at its expense at the direction of
Holders of Certificates evidencing not less than 50% of all Voting Rights, but
only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders.The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Securities Administrator to institute
such action, suit or proceeding in its own name as Securities Administrator
hereunder and shall have offered to the Securities Administrator such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Securities Administrator, for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Securities Administrator, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices.All demands, notices, instructions, directions,
requests and communications required or permitted to be delivered hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (provided,
however, that notices to the Securities Administrator may be delivered by
facsimile and shall be deemed effective upon receipt) to (a) in the case of the
Depositor, Banc of America Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel and Chief Financial
Officer, (b) in the case of the Master Servicer, Xxxxx Fargo Bank, N.A., 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC SALT, Series
2005-1F, (c) in the case of the Securities Administrator, Xxxxx Fargo Bank,
N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC SALT, Series
2005-1F, and for overnight delivery purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: BAFC SALT, Series
2005-1F, with a copy to Xxxxx Fargo Bank, N.A., Sixth and Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BAFC SALT, Series 2005-1F, (d) in the
case of the Trustee, Wachovia Bank, National Association, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Structured Finance Services,
SALT 2005-1F, (e) in the case of Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Monitoring Group,
and (f) in the case of S&P, Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential
Mortgage Surveillance Manager or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party. Any
notice required or permitted to be mailed to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register. Any notice to a Certificateholder so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions.If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Xxxx.Xx is the
intention of the Securities Administrator that Certificateholders shall not be
personally liable for obligations of the Trust Estate, that the beneficial
ownership interests represented by the Certificates shall be nonassessable for
any losses or expenses of the Trust Estate or for any reason whatsoever, and
that Certificates upon execution, authentication and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are and shall be deemed fully
paid.
Section 11.08 Access to List of Certificateholders.The Certificate
Registrar will furnish or cause to be furnished to the Trustee and the
Securities Administrator, within 15 days after the receipt of a request by the
Trustee and/or the Securities Administrator in writing, a list, in such form as
the Trustee and/or the Securities Administrator may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date
for payment of distributions to Certificateholders.
If three or more Certificateholders apply in writing to the
Securities Administrator, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Securities
Administrator shall, within five (5) Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
most recent list of Certificateholders held by the Securities Administrator. If
such a list is as of a date more than 90 days prior to the date of receipt of
such applicants' request, the Securities Administrator shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 11.09 Recharacterization.The parties to this Agreement intend the
conveyance by the Depositor to the Trustee of all of its right, title and
interest in and to the Mortgage Loans pursuant to this Agreement to constitute a
purchase and sale and not a loan. Notwithstanding the foregoing, to the extent
that such conveyance is held not to constitute a sale under applicable law, it
is intended that this Agreement shall constitute a security agreement under
applicable law and that the Depositor shall be deemed to have granted to the
Trustee a first priority security interest in all of the Depositor's right,
title and interest in and to the Mortgage Loans.
Section 11.10 Third Party Beneficiary.
The Custodian shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement directly against the parties
to this Agreement.
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized to be hereunto
affixed, all as of the day and year first above written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By:____________________________________
Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.,
as Master Servicer
By:____________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:____________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:____________________________________
Name:
Title:
[Signature Page to the Pooling and Servicing Agreement]
STATE OF )
) ss.:
COUNTY )
)
On the 28th day of December, 2005, before me, a notary public in and
for the State of ___________, personally appeared _________________, known to me
who, being by me duly sworn, did depose and say that s/he is a _______________
of Xxxxx Fargo Bank, N.A., a national banking association, one of the parties
that executed the foregoing instrument; and that s/he signed her/his name
thereto by order of the Board of Directors of such association.
__________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 28th day of December, 2005, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxx Xxxxx, known to me
who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Banc of America Funding Corporation, a Delaware corporation, one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
__________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 28th day of December, 2005, before me, a notary public in and
for the State of North Carolina, personally appeared ______________, known to me
who, being by me duly sworn, did depose and say that s/he is a _____________ of
Wachovia Bank, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that s/he signed her/his
name thereto by order of the Board of Directors of such association.
__________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF _________ )
) ss.:
COUNTY OF ________ )
)
On the 28th day of December, 2005, before me, a notary public in and
for the State of ___________, personally appeared ___________________, known to
me who, being by me duly sworn, did depose and say that s/he is a
__________________ of Xxxxx Fargo Bank, N.A., a national banking association,
one of the parties that executed the foregoing instrument; and that s/he signed
her/his name thereto by order of the Board of Directors of such association.
__________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
EXHIBIT A-1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $106,138,000.00
Pass-Through Rate: Floating
CUSIP No.: 86789M AA 5
ISIN No.: US86789MAA53
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
(i) 0.650% plus (ii) LIBOR, subject to a minimum rate of 0.650% and a maximum
rate of 5.750%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-2
[FORM OF FACE OF CLASS 1-A-2 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Notional Amount
of this Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $106,138,000.00
Pass-Through Rate: Inverse Floating
CUSIP No.: 86789M AB 3
ISIN No.: US86789MAB37
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated December 28, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 1-A-2 Certificate is not entitled to any distributions with
respect to principal.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
(i) 5.100% minus (ii) LIBOR, subject to a minimum rate of 0.000% and a maximum
rate of 5.100%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-3
[FORM OF FACE OF CLASS 1-A-3 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $16,561,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AC 1
ISIN No.: US86789MAC10
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-4
[FORM OF FACE OF CLASS 1-A-4 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 1-A-3 CERTIFICATES WILL BE BORNE BY THE
CLASS 1-A-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-4
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,840,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AD 9
ISIN No.: US86789MAD92
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-5
[FORM OF FACE OF CLASS 1-A-5 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-5
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $20,651,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AE 7
ISIN No.: US86789MAE75
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-6
[FORM OF FACE OF CLASS 1-A-6 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-6
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $18,660,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AF 4
ISIN No.: US86789MAF41
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-7
[FORM OF FACE OF CLASS 1-A-7 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-7
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-7
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $8,364,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AG 2
ISIN No.: US86789MAG24
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-8
[FORM OF FACE OF CLASS 1-A-8 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-8
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 1-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 1-A-8 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-8
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $11,793,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AH 0
ISIN No.: US86789MAH07
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-IO
[FORM OF FACE OF CLASS 1-IO CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-IO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OR INCREASES OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS
THAN OR GREATER THAN THE AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-IO
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Notional Amount
of this Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $20,146,950.00
Pass-Through Rate: 5.500%
CUSIP No.: 86789M AJ 6
ISIN No.: US86789MAJ62
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated December 28, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 1-IO Certificate is not entitled to any distributions with
respect to principal.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 1-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of four loan groups of fixed-rate mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $100.00
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AK 3
ISIN No.: US86789MAK36
THIS CERTIFIES THAT __________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the applicable
subaccount of the Certificate Account will be made only upon presentment and
surrender of this Class 1-A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 1-A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-R Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Class 1-A-R
Certificate to such proposed transferee shall be effected; (v) this Class 1-A-R
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Class 1-A-R Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 1-A-R
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 1-A-R Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class 1-A-R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the related Master Servicer, will provide to
the Internal Revenue Service, and to the Persons specified in Section 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $70,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 86789M AL 1
ISIN No.: US86789MAL19
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
(i) 0.650% plus (ii) LIBOR, subject to a minimum rate of 0.650% and a maximum
rate of 5.750%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-2
[FORM OF FACE OF CLASS 2-A-2 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Notional Amount
of this Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $70,000,000.00
Pass-Through Rate: Inverse Floating
CUSIP No.: 86789M AM 9
ISIN No.: US86789MAM91
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated December 28, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 2-A-2 Certificate is not entitled to any distributions with
respect to principal.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
(i) 5.100% minus (ii) LIBOR, subject to a minimum rate of 0.000% and a maximum
rate of 5.100%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-3
[FORM OF FACE OF CLASS 2-A-3 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $23,603,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AN 7
ISIN No.: US86789MAN74
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-4
[FORM OF FACE OF CLASS 2-A-4 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-3 CERTIFICATES WILL BE BORNE BY THE
CLASS 2-A-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-4
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,622,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AP 2
ISIN No.: US86789MAP23
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-5
[FORM OF FACE OF CLASS 2-A-5 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-5
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $19,916,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AQ 0
ISIN No.: US86789MAQ06
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-6
[FORM OF FACE OF CLASS 2-A-6 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-6
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,414,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AR 8
ISIN No.: US86789MAR88
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-7
[FORM OF FACE OF CLASS 2-A-7 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-7
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-7
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,886,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 86789M AS 6
ISIN No.: US86789MAS61
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-8
[FORM OF FACE OF CLASS 2-A-8 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-8
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 2-A-8
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $91,616,000.00
Pass-Through Rate: 6.000%
CUSIP No.: 86789M AT 4
ISIN No.: US86789MAT45
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 3-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 3-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $120,439,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 86789M AU 1
ISIN No.: US86789MAU18
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-4-A-1
[FORM OF FACE OF CLASS 4-A-1 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 4-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class 4-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $117,447,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 86789M AV 9
ISIN No.: US86789MAV90
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-CB-IO
[FORM OF FACE OF CLASS CB-IO CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class CB-IO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
REPRESENTS MULTIPLE "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS AND INCREASES OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS
THAN OR GREATER THAN THE AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class CB-IO
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $23,536,732.00
Pass-Through Rate: 5.500%
CUSIP No.: 86789M AW 7
ISIN No.: US86789MAW73
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated December 28, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class CB-IO Certificate is not entitled to any distributions with
respect to principal.
For the purposes of determining distributions of interest, the Class CB-IO
Certificates will be deemed to consist of three components (each, a
"Component"). The amount of interest which accrues on the Class CB-IO
Certificates in any month will equal the sum of the interest which accrues on
the Components. The Components are not severable.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-X-PO
[FORM OF FACE OF CLASS X-PO CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class X-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
REPRESENTS MULTIPLE "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class X-PO
evidencing an interest in a Trust consisting primarily of four loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,334,874.00
CUSIP No.: 86789M AX 5
ISIN No.: US86789MAX56
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class X-PO Certificate represents the right to receive principal
only.
For the purposes of determining distributions of principal in reduction of
Class Certificate Balance, the Class X-PO Certificates will be deemed to consist
of four components (each, a "Component"). The Components are not severable.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $25,119,000.00
Pass-Through Rate: Variable
CUSIP No.: 86789M AY 3
ISIN No.: US86789MAY30
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for each Loan Group)
of (i) with respect to Loan Group 1, 5.750%, (ii) with respect to Loan Group 2,
5.857%, (iii) with respect to Loan Group 3, 6.500% and (iv) with respect to Loan
Group 4, 6.500%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $8,258,000.00
Pass-Through Rate: Variable
CUSIP No.: 86789M AZ 0
ISIN No.: US86789MAZ05
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for each Loan Group)
of (i) with respect to Loan Group 1, 5.750%, (ii) with respect to Loan Group 2,
5.857%, (iii) with respect to Loan Group 3, 6.500% and (iv) with respect to Loan
Group 4, 6.500%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,817,000.00
Pass-Through Rate: Variable
CUSIP No.: 86789M BA 4
ISIN No.: US86789MBA45
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for each Loan Group)
of (i) with respect to Loan Group 1, 5.750%, (ii) with respect to Loan Group 2,
5.857%, (iii) with respect to Loan Group 3, 6.500% and (iv) with respect to Loan
Group 4, 6.500%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT IT IS NOT,
AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH PURCHASE OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE
DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-4
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,817,000.00
Pass-Through Rate: Variable
CUSIP No.: 86789M BB 2
ISIN No.: US86789MBB28
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for each Loan Group)
of (i) with respect to Loan Group 1, 5.750%, (ii) with respect to Loan Group 2,
5.857%, (iii) with respect to Loan Group 3, 6.500% and (iv) with respect to Loan
Group 4, 6.500%.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT IT IS NOT,
AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH PURCHASE OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE
DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-5
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,130,000.00
Pass-Through Rate: Variable
CUSIP No.: 86789M BC 0
ISIN No.: US86789MBC01
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for each Loan Group)
of (i) with respect to Loan Group 1, 5.750%, (ii) with respect to Loan Group 2,
5.857%, (iii) with respect to Loan Group 3, 6.500% and (iv) with respect to Loan
Group 4, 6.500%.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT IT IS NOT,
AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH PURCHASE OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE
DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
Class B-6
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,752,758.00
Pass-Through Rate: Variable
CUSIP No.: 86789M BD 8
ISIN No.: US86789MBD83
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for each Loan Group)
of (i) with respect to Loan Group 1, 5.750%, (ii) with respect to Loan Group 2,
5.857%, (iii) with respect to Loan Group 3, 6.500% and (iv) with respect to Loan
Group 4, 6.500%.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
SUNTRUST ALTERNATIVE LOAN TRUST, SERIES 2005-1F
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through Certificates, of the Series specified on the face hereof
(collectively, the "Certificates"), and representing a beneficial ownership
interest in the Trust created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 25th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement.
On each Distribution Date, the Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Section 5.02 of the Pooling and Servicing Agreement. The final distribution on
each Certificate will be made in like manner, but only upon presentation and
surrender of such Certificate to the Securities Administrator as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the Corporate Trust Office of
the Securities Administrator accompanied by a written instrument of transfer in
form satisfactory to the Securities Administrator and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Master Servicer, the Certificate Registrar, the
Securities Administrator and the Trustee and any agent of the Depositor, the
Master Servicer, the Certificate Registrar, the Securities Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 1% of the aggregate Cut-off Date Pool
Principal Balance of such Mortgage Loans, the Servicer has the option to
purchase the Mortgage Loans under the conditions set forth in Section 10.01 of
the Pooling and Servicing Agreement. In the event that no such termination
occurs, the obligations and responsibilities created by the Pooling and
Servicing Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust or the disposition of all property in respect thereof and
the distribution to Certificateholders of all amounts required to be distributed
pursuant to the Pooling and Servicing Agreement. In no event shall the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. Xxxxx,
living on the date thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By
----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By
----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________ for the account of
___________________, account number _________________________, or, if mailed by
check, to Applicable statements should be mailed to _______________________
This information is provided by , the assignee named above, or , as its
agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
Intentionally Omitted
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
Intentionally Omitted
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
Intentionally Omitted
EXHIBIT D-4
LOAN GROUP 4 MORTGAGE LOAN SCHEDULE
Intentionally Omitted
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
December 28, 2005
To: SunTrust Bank
0000 Xxxxxx Xxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement dated December 28, 2005, among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A.,
as Securities Administrator and Master Servicer, and Wachovia Bank,
National Association, as Trustee.
In connection with the administration of the Mortgage Loans held by you,
as Custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one)
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By: _______________________________________
(authorized signer of SunTrust
Mortgage, Inc.)
Issuer: ___________________________________
Address: __________________________________
Date: _____________________________________
Custodian
SunTrust Bank
Please acknowledge the execution of the above request by your signature and date
below:
__________________________________ _______________
Signature Date
Documents returned to Custodian:
__________________________________ _______________
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
December 28, 2005
[_______________] hereby certifies that it has established a
[__________] Account pursuant to Section [________] of the Pooling and Servicing
Agreement, dated December 28, 2005, among Banc of America Funding Corporation,
as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and Wachovia Bank, National Association, as Trustee.
[_______________],
By: ______________________________________
Name: _____________________________________
Title: ____________________________________
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
December 28, 2005
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: SunTrust Alternative Loan Trust, Series 2005-1F,
Mortgage Pass-Through Certificates, Series 2005-1F,
Class ___, having an initial aggregate Certificate
Balance as of December 28, 2005 of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated December 28, 2005, among Banc of America Funding Corporation,
as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and Wachovia Bank, National Association, as Trustee. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Securities Administrator, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
__________________________________________
(Transferor)
By:_______________________________________
Name:_____________________________________
Title: ___________________________________
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
December 28, 2005
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: SunTrust Alternative Loan Trust, Series 2005-1F,
Mortgage Pass-Through Certificates, Series 2005-1F,
Class ___, having an initial aggregate Certificate
Balance as of December 28, 2005 of $_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated December 28, 2005, among Banc of America
Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, and Wachovia Bank, National Association, as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
__________________________________________
(Transferor)
By:_______________________________________
Name:_____________________________________
Title: ___________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
__________________________________________
(Nominee)
By:_______________________________________
Name:_____________________________________
Title: ___________________________________
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________]
(the "Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator with
respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) the Transferee owned and/or invested on a discretionary
basis $______________________(1) in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
--------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
__________________________________________
Print Name of Transferee
By:_______________________________________
Name:_____________________________________
Title: ___________________________________
Date:_____________________________________
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________]
(the "Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator, with
respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended, because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:_______________________________________
Name:_____________________________________
Title: ___________________________________
IF AN ADVISER:
__________________________________________
Print Name of Transferee
By:_______________________________________
Date:_____________________________________
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
December 28, 2005
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: SunTrust Alternative Loan Trust, Series 2005-1F,
Mortgage Pass-Through Certificates, Series 2005-1F,
Class ___, having an initial aggregate Certificate
Principal Balance as of December 28, 2005 of
$---------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [___________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated December 28, 2005, among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, and Wachovia Bank, National Association, as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the 1933 Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Securities Administrator is obligated so to register or qualify the
Transferred Certificates and (c) neither the Transferred Certificates nor any
security issued in exchange therefor or in lieu thereof may be resold or
transferred unless such resale or transfer is exempt from the registration
requirements of the 1933 Act and any applicable state securities laws or is made
in accordance with the 1933 Act and laws, in which case (i) unless the transfer
is made in reliance on Rule 144A under the 1933 Act, the Securities
Administrator or the Depositor may require a written Opinion of Counsel (which
may be in-house counsel) acceptable to and in form and substance reasonably
satisfactory to the Securities Administrator and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act and such laws or is being
made pursuant to the 1933 Act and such laws, which Opinion of Counsel shall not
be an expense of the Securities Administrator or the Depositor and (ii) the
Securities Administrator shall require a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit G-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Pooling and Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B,
which certificates shall not be an expense of the Securities Administrator or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER
(I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, STATING THAT IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH PURCHASE OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT
SUBJECT THE DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR
OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING
SENTENCE UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER
OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (d) above) would constitute a distribution of the
Transferred Certificates under the 1933 Act, would render the disposition of the
Transferred Certificates a violation of Section 5 of the 1933 Act or any state
securities law or would require registration or qualification of the Transferred
Certificates pursuant thereto. The Transferee will not act, nor has it
authorized nor will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to the Transferred Certificates, any
interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
__________________________________________
(Transferee)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
Date: ____________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
__________________________________________
(Nominee)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: SunTrust Alternative Loan Trust, Series 2005-1F, Mortgage
Pass-Through Certificates, Series 2005-1F, Class ___, having an
initial aggregate Certificate Principal Balance as of December 28,
2005 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to
[________________________________] (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 6.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
December 28, 2005, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer, and
Wachovia Bank, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, that it is not, and is not acting on behalf of, an
employee benefit plan or arrangement, including an individual retirement
account, subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the "Code"),
or any federal, state or local law ("Similar Law") which is similar to ERISA or
the Code (collectively, a "Plan"), and it is not using the assets of any such
Plan to effect the purchase of the Transferred Certificates.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
__________________________________________
(Transferee)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
Date: ____________________________________
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE
SunTrust Alternative Loan Trust, Series 2005-1F
Mortgage Pass-Through Certificates,
Series 2005-1F
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of _______________________________,
the proposed transferee (the "Transferee") of the Class 1-A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated December 28, 2005, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and Wachovia Bank, National Association, as Trustee. Capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Residual Certificate to Persons that are
not Permitted Transferees; (ii) such tax will be imposed on the transferor, or,
if such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record Holder of an interest in such entity. The
Transferee understands that, other than in the case of an "electing large
partnership" under Section 775 of the Code, such tax will not be imposed for any
period with respect to which the record Holder furnishes to the pass-through
entity an affidavit that such record Holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is false.
(For this purpose, a "pass-through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives and, except as may be provided in
Treasury Regulations, persons holding interests in pass-through entities as a
nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form
of this Affidavit from any Person to whom the Transferee attempts to transfer
the Residual Certificate, and in connection with any transfer by a Person for
whom the Transferee is acting as nominee, trustee or agent, and the Transferee
will not transfer the Residual Certificate or cause the Residual Certificate to
be transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have
become due.
8. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Residual Certificate.
9. The taxpayer identification number of the Transferee's nominee is
_________________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. Person.
13. If the Transferee is purchasing the Residual Certificate in a
transfer intended to meet the safe harbor provisions of Treasury Regulations
Sections 1.860E-1(c), the Transferee has executed and attached Attachment A
hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
Print Name of Transferee
By: ______________________________________
Name:
Title:
Personally appeared before me the above-named _________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of ________________,
________
_____________________________________
Notary Public
My Commission expires the ____ day of
________________, _____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
|_| The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of
the anticipated tax liabilities over (b) the present value of the
anticipated savings associated with holding such Residual Certificate,
in each case calculated in accordance with U.S. Treasury Regulations
Sections 1.860E-1(c)(7) and (8), computing present values using a
discount rate equal to the short-term Federal rate prescribed by
Section 1274(d) of the Code and the compounding period used by the
Transferee.
OR
|_| The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT K
FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN
December 28, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - STALT 2005-1F
Re: The Pooling and Servicing Agreement, dated December 28,
2005 (the "Pooling and Servicing Agreement"), among the
Depositor, Xxxxx Fargo Bank, N.A., as securities
administrator and master servicer and Wachovia Bank,
National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") and Section 2.3 of the Custodial Agreement (as defined in the
Pooling and Servicing Agreement), the undersigned, as Custodian, hereby
certifies that, except as specified in any list of exceptions attached hereto,
it has received the original Mortgage Note relating to each of the Mortgage
Loans listed on the Mortgage Loan Schedule.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement and the Custodial Agreement in connection with
this Initial Certification. The Custodian makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File or any of
the Mortgage Loans identified in the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
SUNTRUST BANK
as Custodian
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
EXHIBIT L
FORM OF FINAL CERTIFICATION OF THE CUSTODIAN
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - STALT 2005-1F
Re: The Pooling and Servicing Agreement, dated December 28,
2005 (the "Pooling and Servicing Agreement"), among the
Depositor, Xxxxx Fargo Bank, N.A., as securities
administrator and master servicer and Wachovia Bank,
National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") and Section 2.3 of the Custodial Agreement (as defined in the
Pooling and Servicing Agreement), the undersigned, as Custodian, hereby
certifies that, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in any list of exceptions attached hereto, such
Mortgage File contains all of the items required to be delivered pursuant to
Section 2.01(b) of the Pooling and Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement and the Custodial Agreement in connection with
this Final Certification. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
SUNTRUST BANK
as Custodian
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
EXHIBIT M
Form of Xxxxxxxx-Xxxxx Certification
SunTrust Alternative Loan Trust, Series 2005-1F
Mortgage Pass-Through Certificates,
Series 2005-1F
I, [________], a [_____________] of Xxxxx Fargo Bank, N.A. (the
"Master Servicer"), certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly
Form 8-K's containing Distribution Date Statements filed in respect of
periods included in the year covered by this annual report, of the
SunTrust Alternative Loan Trust, Series 2005-1F (the "Trust");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Securities Administrator by the Master Servicer
under the Pooling and Servicing Agreement, dated December 28, 2005 (the
"Agreement"), among Banc of America Funding Corporation, as depositor, the
Master Servicer, Xxxxx Fargo Bank, N.A., as securities administrator and
Wachovia Bank, National Association, as trustee, for inclusion in these
reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the Agreement and based upon my knowledge and the annual
compliance review required under the Agreement, and except as disclosed in
the reports, the Master Servicer has fulfilled its obligations under the
Agreement; and
5. The reports disclose all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure as set forth in the Agreement that
is included in these reports.
XXXXX FARGO BANK, N.A.
By: ______________________________________
Name:
Title:
EXHIBIT N
FORM OF CERTIFICATION TO BE PROVIDED BY
THE SECURITIES ADMINISTRATOR TO THE MASTER SERVICER
SunTrust Alternative Loan Trust, Series 2005-1F
Mortgage Pass-Through Certificates, Series 2005-1F
The Securities Administrator hereby certifies to the Master Servicer and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the calendar year [___]
and the Monthly Form 8-K's containing the Distribution Date Statements filed in
respect of periods included in the year covered by such annual report;
2. Based on my knowledge, the distribution information in the Distribution Date
Statements contained in the Monthly Form 8-K's included in the year covered by
the annual report on Form 10-K for the calendar year [___], taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by that annual report; and
3. Based on my knowledge, the distribution or servicing information required to
be provided to the Securities Administrator by the Master Servicer under the
Pooling and Servicing Agreement, dated December 28, 2005, among Banc of America
Funding Corporation, as depositor, Xxxxx Fargo Bank, N.A., as master servicer
and securities administrator, and Wachovia Bank, National Association, as
trustee, for inclusion in these reports is included in these reports.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By: ______________________________________
Name:
Title:
EXHIBIT O
Class 1-A-1 Yield Maintenance Agreement
Intentionally Omitted
EXHIBIT P
Class 2-A-1 Yield Maintenance Agreement
Intentionally Omitted
EXHIBIT Q
Custodial Agreement
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated December 28, 2005, by and among WACHOVIA BANK,
NATIONAL ASSOCIATION, not individually, but solely as Trustee (including its
successors under the Pooling Agreement defined below, the "Trustee"), BANC OF
AMERICA FUNDING CORPORATION (together with any successor in interest, the
"Depositor"), SUNTRUST MORTGAGE, INC.. (the "Servicer"), and SUNTRUST BANK.
(together with any successor in interest or any successor appointed hereunder,
the "Custodian").
W I T N E S S E T H T H A T
WHEREAS, the Depositor, Xxxxx Fargo Bank, N.A., as securities
administrator and master servicer (the "Master Servicer"), and the Trustee have
entered into a Pooling and Servicing Agreement, dated December 28, 2005,
relating to the issuance of the Depositor's Mortgage Pass-Through Certificates,
Series 2005-1F (as amended and supplemented from time to time, the "Pooling
Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee
for the purposes of receiving and holding certain documents and other
instruments delivered by the Depositor under the Pooling Agreement, all upon the
terms and conditions and subject to the limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Depositor, the
Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned in the Pooling Agreement, unless otherwise
required by the context herein.
ARTICLE II
Custody of Mortgage Documents
Section 2.1. Custodian to Act as Agent; Acceptance of Custodial
Files. Subject to Section 2.3 hereof, the Custodian, as the duly appointed agent
of the Trustee for these purposes, declares that it holds and will hold the
documents delivered to it pursuant to Section 2.01 of the Pooling Agreement and
any other documents constituting part of the Mortgage File received on or
subsequent to the date hereof (the "Custodial Files") as agent for the Trustee,
in trust, for the use and benefit of all present and future Certificateholders.
Section 2.2. Recordation of Assignments. Unless an assignment of a
Mortgage is not required to be recorded in accordance with Section 2.01 of the
Pooling Agreement, if any Custodial File includes one or more assignments to the
Trustee of Mortgage Notes and related Mortgages that have not been recorded,
each such assignment shall be delivered by the Custodian to the Servicer for the
purpose of recording it in the appropriate public office for real property
records, and the Servicer, at no expense to the Custodian, shall promptly cause
to be recorded in the appropriate public office for real property records each
such assignment and, upon receipt thereof from such public office, shall return
each such assignment to the Custodian.
Section 2.3. Review of Custodial Files. The Custodian agrees, for
the benefit of Certificateholders, to review, in accordance with the provisions
of Section 2.02 of the Pooling Agreement, each Custodial File and to provide the
initial and final certifications in the forms of Exhibits K and L to the Pooling
Agreement in accordance with the provisions thereof. If in performing the review
required by this Section 2.3 the Custodian finds any document or documents
constituting a part of a Custodial File to be missing or defective, the
Custodian shall follow the procedures specified in the Pooling Agreement. The
Custodian shall provide to the Trustee upon request an electronic list of
outstanding exceptions in connection with the initial and final Certification.
Section 2.4. Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Depositor as set forth in the Pooling Agreement, the
Custodian shall follow the procedures specified in the Pooling Agreement.
Section 2.5. Custodian to Cooperate; Release of Custodial Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Servicer of
a notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer shall immediately deliver to the Custodian two
copies of a Request for Release or such request in an electronic format
acceptable to the Custodian and shall request delivery to it of the Custodial
File. The Custodian agrees, within seven business days of receipt of such
Request for Release, to release the related Custodial File to the Servicer.
From time to time as is appropriate for the servicing or foreclosure
of any Mortgage Loan, including for this purpose, collection under any Primary
Insurance Policy, the Servicer shall deliver to the Custodian two copies of a
Request for Release of a Servicing Officer requesting that possession of the
Custodial File be released to the Servicer and certifying as to the reason for
such release. Upon receipt of the foregoing, the Custodian shall deliver the
Custodial File to the Servicer. The Servicer shall cause each Custodial File
therein so released to be returned to the Custodian when the need therefor by
the Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Certificate Account to the extent required by the Pooling Agreement or
(ii) the Custodial File or such document has been delivered to an attorney, or
to a public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially. In the event of the
liquidation of a Mortgage Loan, the Servicer shall deliver two copies of a
Request for Release with respect thereto to the Custodian upon deposit of the
related Liquidation Proceeds in the Certificate Account to the extent required
by the Pooling Agreement.
Section 2.6. Assumption, Modification, Consolidation and Extension
Agreements. In the event that any assumption, modification, consolidation,
extension or substitution of liability agreement is entered into with respect to
any Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling Agreement, the Servicer shall notify the Custodian
that such agreement has been completed by forwarding to the Custodian the
original of such agreement, which copy shall be added to the related Custodial
File and, for all purposes, shall be considered a part of such Custodial File to
the same extent as all other documents and instruments constituting parts
thereof.
ARTICLE III
Concerning the Custodian
Section 3.1. Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note and other documents constituting each Custodial
File which are delivered to the Custodian, the Custodian is exclusively the
bailee and agent of the Trustee, holds such documents for the benefit of
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement and in the Pooling Agreement. All
provisions of the Pooling Agreement setting forth duties of the Custodian in
more detail are hereby incorporated by reference into this Agreement. Except
upon compliance with the provisions of Section 2.5 of this Agreement and the
provisions of the Pooling Agreement, no Mortgage Note or other document
constituting a part of a Custodial File shall be delivered by the Custodian to
the Depositor or the Servicer or otherwise released from the possession of the
Custodian.
Section 3.2. Custodian May Own Certificates. The Custodian in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Custodian.
Section 3.3. Custodian's Fees and Expenses. The Custodian, as
compensation for its services hereunder, shall be entitled to a fee as described
in Section 9.11 of the Pooling Agreement.
Section 3.4. Custodian May Resign; Trustee May Remove Custodian. The
Custodian may resign from the obligations and duties hereby imposed upon it as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either take
custody of the Custodial Files itself and give prompt notice thereof to the
Depositor, the Servicer and the Custodian or promptly appoint a successor
Custodian by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Custodian and one copy to the successor
Custodian. If the Trustee shall not have taken custody of the Custodial Files
and no successor Custodian shall have been so appointed and have accepted
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee, upon 60 days written notice, and with the written
consent of the Depositor and the Servicer, may remove the Custodian. In such
event, the Trustee shall appoint, or petition a court of competent jurisdiction
to appoint, a successor Custodian hereunder. Any successor Custodian shall be a
depository institution subject to supervision or examination by federal or state
authority and shall be able to satisfy the other requirements contained in
Section 3.6.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.4 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Depositor and the Servicer of the
appointment of any successor Custodian. No successor Custodian shall have been
appointed and accepted appointment by the Trustee without the prior approval of
the Depositor and the Servicer. Upon the appointment of a successor Custodian,
the Servicer may make such arrangements for the compensation of such successor
as it and such successor shall agree, provided however that such compensations
shall not exceed the compensation payable to the Custodian hereunder.
Section 3.5. Merger or Consolidation of Custodian. Any Person into
which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 3.6. Representations of the Custodian. The Custodian hereby
represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $10,000,000 and is qualified to do business in the jurisdiction in
which it will hold any Custodial File.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. Notices. All notices, requests, consents and demands
and other communications required under this Agreement or pursuant to any other
instrument or document delivered hereunder shall be in writing and, unless
otherwise specifically provided, may be delivered personally, by telegram or
telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), in which case the notice will be deemed delivered when received.
Section 4.2. Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto. The Trustee shall give prompt written
notice to the Custodian of any amendment or supplement to the Pooling Agreement
and furnish the Custodian with written copies thereof.
Section 4.3. Governing Law. This Agreement shall be deemed a
contract made under the laws of the State of New York and shall be construed and
enforced in accordance with and governed by the laws of the State of New York.
Section 4.4. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer and at its expense on direction
by the Trustee, but only upon direction accompanied by an Opinion of Counsel to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 4.5. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
IN WITNESS WHEREOF, this Agreement is executed the date first above
written.
Address: WACHOVIA BANK, NATIONAL ASSOCIATION, as
Trustee
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:__________________________________
Name:
Title:
Address: BANC OF AMERICA FUNDING CORPORATION, as
Depositor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:__________________________________
Name:
Title:
Address: SUNTRUST BANK, as Custodian
0000 Xxxxxx Xxx, 0xx Xxxxx By:__________________________________
Xxxxxxxx, Xxxxxxxx 00000 Name:
Title:
SUNTRUST MORTGAGE, INC., as Servicer
Address:
By:__________________________________
Name:
000 Xxxxxx Xxxxxx, 0xx Xxxxx, Title:
Xxxxxxxx, Xxxxxxxx 00000
STATE OF )
) ss.:
COUNTY OF )
On the __th day of December, 2005, before me, a notary public in and
for the State of _____________, personally appeared__________________, known to
me who, being by me duly sworn, did depose and say that s/he is a
_________________of Banc of America Funding Corporation., a Delaware
corporation, one of the parties that executed the foregoing instrument; and that
she signed her name thereto by order of the Board of Directors of such
corporation.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the __th day of December, 2005, before me, a notary public in and
for the State of ______________, personally appeared _________________, known to
me who, being by me duly sworn, did depose and say that s/he is an
___________________ of SunTrust Bank, one of the parties that executed the
foregoing instrument; and that s/he signed his name thereto.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the __th day of December, 2005, before me, a notary public in and
for the State of ________________, personally appeared _____________________,
known to me who, being by me duly sworn, did depose and say that s/he is an
__________________ of SunTrust Mortgage, Inc., one of the parties that executed
the foregoing instrument; and that s/he signed his/her name thereto.
__________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the __th day of December, 2005, before me, a notary public in and
for the State of ________________, personally appeared ________________, known
to me who, being by me duly sworn, did depose and say that s/he is an
____________ of Wachovia Bank, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
s/he signed his name thereto by order of the Board of Directors of such
association.
_________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT R
Servicing Agreement
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Assignment, Assumption and Recognition Agreement, dated December 28, 2005,
among SunTrust Asset Funding, LLC, a Delaware limited liability company
("Assignor"), Banc of America Funding Corporation, a Delaware corporation
("BAFC"), Wachovia Bank, National Association, a national banking association,
as trustee of the SunTrust Alternative Loan Trust, Series 2005-1F ("Assignee"),
Xxxxx Fargo Bank, N.A., a national banking association ("Xxxxx Fargo Bank"), as
master servicer of the SunTrust Alternative Loan Trust, Series 2005-1F, and
SunTrust Mortgage, Inc., a Virginia corporation ("SunTrust Mortgage");
WHEREAS, pursuant to the Seller's Purchase, Warranties and Servicing
Agreement, dated as of November 1, 2005, by and between the Assignor, as
purchaser, and SunTrust Mortgage, as seller (the "Sale and Servicing
Agreement"), the Assignor purchased the Mortgage Loans (as defined herein) from
SunTrust Mortgage on a servicing retained basis;
WHEREAS, on the date hereof, the Assignor is transferring all of its
right, title and interest in and to the Mortgage Loans to BAFC;
WHEREAS, on the date hereof, BAFC is transferring all of its right, title
and interest in and to the Mortgage Loans to the Assignee; and
WHEREAS, on the date hereof, Xxxxx Fargo Bank, as master servicer (in such
capacity, the "Master Servicer"), is entering into a Pooling and Servicing
Agreement, dated the date hereof (the "Pooling Agreement), among BAFC, the
Master Servicer, Xxxxx Fargo Bank, as securities administrator (the "Securities
Administrator"), and the Assignee, pursuant to which the Master Servicer will
supervise, monitor and oversee the servicing of the Mortgage Loans.
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor has sold, assigned, set over, and otherwise conveyed all
of its rights in, to and under the Mortgage Loans delivered under the Sale and
Servicing Agreement to BAFC pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of December 28, 2005, by and among BAFC, the Assignor and
SunTrust Bank.
2. The Assignor hereby grants, transfers and assigns to BAFC, and BAFC
hereby grants, transfers and assigns to the Assignee, all of the right, title
and interest of the Assignor in, to and under the Sale and Servicing Agreement
but excluding Section 3.05 and Section 3.06, relating to the mortgage loans
delivered under such agreement by SunTrust Mortgage to the Assignor (who
delivered such mortgage loans to the Assignee) and listed on Exhibit A attached
hereto (the "Mortgage Loans").
The Assignor specifically reserves and does not assign to BAFC or the
Assignee any right, title and interest in, to or under any mortgage loan subject
to the Sale and Servicing Agreement other than the Mortgage Loans.
3. The Assignor warrants and represents to, and covenants with, BAFC and
the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the full
right to transfer the Mortgage Loans free from any and all claims
and encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to SunTrust
Mortgage with respect to the Sale and Servicing Agreement or the
Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Sale and Servicing
Agreement or the Mortgage Loans, including without limitation the
transfer of the servicing obligations under the Sale and Servicing
Agreement. The Assignor has no knowledge of, and has not received
notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Sale and
Servicing Agreement or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar
security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Mortgage Loans, any interest in
the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security with,
any person in any manner, or made any general solicitation by means
of general advertising or in any other manner, or taken any other
action which would constitute a distribution of the Mortgage Loans
under the Securities Act of 1933, as amended (the "Securities Act"),
or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the Securities Act or require registration
pursuant thereto.
4. From and after the date hereof, SunTrust Mortgage shall (i) note the
transfer of the Mortgage Loans to the Assignee in its books and records, (ii)
recognize the Assignee as the owner of the Mortgage Loans and (iii)
notwithstanding anything to the contrary contained in Section 10.01 of the Sale
and Servicing Agreement, continue to service the Mortgage Loans pursuant to the
Sale and Servicing Agreement, as modified by Section 12 of this Agreement, for
the benefit of the Assignee.
5. SunTrust Mortgage acknowledges that the Master Servicer, pursuant to
the Pooling Agreement, will administer on behalf of the Assignee the terms and
conditions of the Sale and Servicing Agreement with respect to the Mortgage
Loans. The Master Servicer shall be authorized to enforce directly against
SunTrust Mortgage any of the obligations of SunTrust Mortgage to the Assignor or
its assignees provided for in the Sale and Servicing Agreement relating to the
Mortgage Loans including, without limitation, the right to exercise any and all
rights of the Assignor (but not the obligations) under the Sale and Servicing
Agreement to monitor and enforce the obligations of SunTrust Mortgage
thereunder, the right to terminate SunTrust Mortgage under the Sale and
Servicing Agreement upon the occurrence of an event of default thereunder, the
right to receive all remittances required to be made by SunTrust Mortgage under
the Sale and Servicing Agreement, the right to receive all monthly reports and
other data required to be delivered by SunTrust Mortgage under the Sale and
Servicing Agreement, the right to examine the books and records of SunTrust
Mortgage, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by SunTrust Mortgage. All
remittances by SunTrust Mortgage shall be made to the account or accounts
designated by the Master Servicer to SunTrust Mortgage in writing from time to
time. Wire remittances shall be sent to: XXXXX FARGO BANK, N.A., ABA# 000000000,
FOR CREDIT TO: SAS CLEARING, ACCT: 0000000000, FFC TO: BAFC STALT 2005-1F #
17214700.
6. The Assignee shall notify SunTrust Mortgage in writing within 5
business days thereafter, but in no event later than the next Remittance Date,
of the appointment of any successor to Xxxxx Fargo as Master Servicer under the
Pooling Agreement.
7. SunTrust Mortgage hereby restates as of the date hereof, for the
benefit of each of the other parties hereto, each of the representations and
warranties in Sections 3.01 and 3.02 of the Sale and Servicing Agreement with
the same effect under such Sale and Servicing Agreement as if such
representations and warranties had been made as of the date hereof, provided,
however, that with respect to those representations and warranties that relate
to the delinquency or condition of the Mortgaged Property (as defined in the
Sale and Servicing Agreement), SunTrust Mortgage restates such representations
and warranties as of the Closing Date (as defined in the Sale and Servicing
Agreement). SunTrust Mortgage hereby represents and warrants to each of the
other parties hereto (i) that it has serviced the Mortgage Loans in accordance
with the terms of the Sale and Servicing Agreement, (ii) that it has taken no
action nor omitted to take any required action the omission of which would have
the effect of impairing any mortgage insurance or guarantee on the Mortgage
Loans and (iii) that any information provided by it on or before the date hereof
to any of the parties hereto is true and correct.
8. SunTrust Mortgage hereby agrees to cooperate with BAFC, the Master
Servicer and the Securities Administrator to enable BAFC, the Master Servicer
and the Securities Administrator to fully comply with all Securities and
Exchange Commission ("SEC") disclosure and reporting requirements in effect from
time to time with respect to the trust created by the Pooling Agreement (which
shall be named "SunTrust Alternative Loan Trust, Series 2005-1F") (the "Trust")
and any securities representing ownership interests in or backed by assets of
the Trust, including without limitation, the SEC's published rules regarding
asset-backed securities (Release Nos. 33-8518); 34-50905; File No.
S7-21-0433-8419).
9. SunTrust Mortgage hereby agrees that, in connection with each Mortgage
Loan of which the related Mortgage has been recorded in the name of MERS or its
designee, it shall take all actions as are necessary to cause the Assignee, as
trustee of the Trust pursuant to the Pooling Agreement, to be shown as the owner
of such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
10. SunTrust Mortgage hereby represents that the Servicing File (as
defined in the Sale and Servicing Agreement) for each Mortgage Loan has been
delivered to SunTrust Bank in its capacity as the custodian under the Custodial
Agreement, dated as of December 28, 2005, among the Assignee, BAFC, SunTrust
Mortgage and SunTrust Bank.
11. SunTrust Mortgage hereby agrees that it will make Monthly Advances as
contemplated by Section 5.03 of the Sale and Servicing Agreement through the
Remittance Date prior to the date on which cash is received in connection with
the liquidation of REO Property, unless SunTrust Mortgage reasonably believes
such advance to be non-recoverable from proceeds of the related Mortgage Loan
pursuant to Section 5.03 of the Sale and Servicing Agreement.
12. SunTrust Mortgage hereby agrees to the following modifications to the
Sale and Servicing Agreement with respect to the Mortgage Loans:
a. Section 1.01. The definition of "Prepayment Interest Shortfall" is
hereby deleted in its entirety and replaced with the following:
"Prepayment Interest Shortfall: As to any Remittance Date and each
Mortgage Loan subject to a Principal Prepayment received during the
calendar month preceding such Remittance Date, the amount, if any,
by which one month's interest at the related Mortgage Loan
Remittance Rate on such Principal Prepayment exceeds the amount of
interest paid in connection with such Principal Prepayment"
b. Section 3.03. The second sentence of the third paragraph of Section
3.03 is hereby deleted in its entirety and replaced with the
following:
"Any substitute Mortgage Loan must, on the date of such
substitution, (i) have an outstanding principal balance, after
deduction of all scheduled payments due in the month of substitution
(or in the case of a substitution of more than one mortgage loan for
a defective Mortgage Loan, an aggregate principal balance), not in
excess of the principal balance of the defective Mortgage Loan; (ii)
have a Mortgage Loan Remittance Rate not less than, and not more
than 2% greater than the Mortgage Loan Remittance Rate of the
defective Mortgage Loan; (iii) have a remaining term to maturity not
greater than and not more than one year less than that of the
defective Mortgage Loan; (iv) comply with each representation and
warranty set forth in Sections 3.01 and 3.02; (v) be of the same
type as the defective Mortgage Loan; (vi) have the same Mortgage
Interest Rate as the defective Mortgage Loan; (vii) have a Credit
Score not less than that of the defective Mortgage Loan, (vii) have
an LTV not greater than that of the defective Mortgage Loan; and
(viii) have the same lien status as the defective Mortgage Loan."
c. Section 4.04. Section 4.04 is hereby modified by adding the
following sentence after the last sentence:
"The amount of any losses incurred on funds deposited in the
Custodial Account shall be deposited by the Servicer into the
Custodial Account on the Business Day prior to the Remittance Date."
d. Section 4.04. Clause (ii) of the second paragraph of Section 4.04 is
hereby deleted in its entirety and replaced with the following:
"(ii) all payments on account of interest, including Compensating
Interest, on the Mortgage Loans adjusted to the Mortgage Interest
Rate;"
e. Section 4.13. The last sentence of the fourth paragraph of Section
4.13 is hereby deleted in its entirety and replaced with the
following:
"Together with the statement furnished pursuant to Section 5.02, the
Servicer shall furnish to the Purchaser on or before the 5th
Business Day of each month a statement with respect to any REO
Property covering the operation of such REO Property for the
previous month and the Servicer's efforts in connection with the
sale of such REO Property and any rental of such REO Property
incidental to the sale thereof for the previous month. That
statement shall be accompanied by such other information as the
Purchaser shall reasonably request."
f. Section 5.02. The first and second paragraphs of Section 5.02 are
hereby deleted in their entirety and replaced with the following:
"Not later than the fifth (5th) Business Day of each month, the
Servicer shall furnish to the Purchaser a delinquency report in the
form set forth in Exhibit E-1, a monthly remittance advice in the
form set forth in Exhibit E-2, and a realized loss report in the
form set forth in Exhibit E-3, each in a mutually agreeable
electronic format, as to the remittance on such Remittance Date and
as to the period ending on the last day of the month preceding such
Remittance Date."
The exhibits referenced in this Section 11(d) are attached to this
Agreement as Exhibit B hereto.
g. Section 8.01. Section 8.01 is hereby modified by inserting the
following as clause (x):
"failure by the Servicer to duly perform, within the required time
period, its obligations under Sections 6.04, 6.05 and 10.01(b)(vi),
which failure continues unremedied for a period of ten (10) days
after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by
any party to this Agreement or by any master servicer responsible
for master servicing the Mortgage Loans pursuant to a securitization
of such Mortgage Loans."
h. Section 10.01(b)(vi). The twelfth line of Section 10.01(b)(vi) is
hereby modified by inserting the following language after the word
"obligation":
", by March 15th of each calendar year, of is such 15th day is not a
Business Day, the immediately preceding Business Day,"
i. Section 10.01(b). Section 10.01(b) is hereby modified by inserting
the following as clause (ix):
"to indemnify and hold harmless each of the Purchaser and any Master
Servicer and their respective officers, directors, agents and
affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and
other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates
of its obligations under Section 10.01(b)(vi), Section 6.04 and
Section 6.05 or the negligence, bad faith or willful misconduct of
the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless
the Purchaser or any Master Servicer, then the Servicer agrees that
it shall contribute to the amount paid or payable by the Purchaser
or Master Servicer as a result of the losses, claims, damages or
liabilities of the Purchaser or Master Servicer in such proportion
as is appropriate to reflect the relative fault of the Purchaser or
Master Servicer on the one hand and the Servicer on the other in
connection with a breach of the Servicer's obligations under Section
10.01(b)(vi), Section 6.04 and Section 6.05, or the Servicer's
negligence, bad faith or willful misconduct in connection
therewith."
j. Exhibit I. Exhibit I is hereby modified by replacing paragraphs (1)
through (5) with the following:
(i) Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing
Report and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans
submitted to the Master Servicer and Depositor taken as a whole,
does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made,
not misleading as of the date of this certification;
(ii) Based on my knowledge, the servicing information required to be
provided to the Master Servicer and the Depositor by the Servicer
under the Sale and Servicing Agreement has been provided to the
Master Servicer and the Depositor;
(iii) I am responsible for reviewing the activities performed by the
Servicer under the Sale and Servicing Agreement and based upon the
review required by the Sale and Servicing Agreement, and except as
disclosed in the Annual Statement of Compliance and the Annual
Independent Public Accountant's Servicing Report submitted to the
Master Servicer and the Depositor, the Servicer has, as of the date
of this certification fulfilled its obligations under the Sale and
Servicing Agreement; and
(iv) I have disclosed to the Master Servicer and the Depositor all
significant deficiencies relating to the Servicer's compliance with
the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program
for Mortgage Bankers or similar standard as set forth in the Sale
and Servicing Agreement.
k. For purposes of clarification, the Servicing Fee Rate is equal to
0.250% per annum.
For purposes of clarification, the Servicer is not obligated under
the Sale and Servicing Agreement to advance the amount of any
reduction in a Mortgagor's monthly payment due to the operation of
the Servicemembers Civil Relief Act.
13. Notwithstanding anything contained in the Sale and Servicing
Agreement, the Servicer shall be entitled to retain all Excess Proceeds (as
defined in the Pooling Agreement) with respect to the Mortgage Loans.
14. The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Sale and Servicing Agreement is:
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Structured Finance Trust Services, BAFC STALT 2005-1F
The Assignor's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Sale and Servicing Agreement is:
SunTrust Asset Funding, LLC
Mail Code 3950
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
With a copy to:
SunTrust Capital Markets, Inc.
Mail Code 3950
000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
SunTrust Mortgage's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Sale and Servicing Agreement is:
SunTrust Mortgage, Inc.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx-Xxxxxxx
BAFC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel and Chief Financial Officer
[Signatures Follow]
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption
and Recognition Agreement to be executed by their duly authorized officers as of
the date first above written.
SunTrust Asset Funding, LLC, Assignor
By:
--------------------------------------
Name:
Title:
Wachovia Bank, National Association,
Assignee
By:
--------------------------------------
Name:
Title:
Banc of America Funding Corporation
By:
--------------------------------------
Name:
Title:
SunTrust Mortgage, Inc.
By:
--------------------------------------
Name:
Title:
Acknowledged and Agreed as
of the date first above written:
Xxxxx Fargo Bank, N.A., as Master Servicer
By:
----------------------------------
Name:
Title:
EXHIBIT A
Schedule of Mortgage Loans
EXHIBIT B
--------------------------------------------------------
Exhibit E-1 Standard File Layout - Delinquency Reporting
--------------------------------------------------------
Column/Header Name Description Decimal Format Comment
----------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
----------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan
by the originator.
----------------------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
----------------------------------------------------------------------------------------------------------------------
Contains a unique number as assigned by an
external servicer to identify a group of
SERV_INVESTOR_NBR loans in their system.
----------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
----------------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
----------------------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
----------------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
----------------------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
----------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment MM/DD/YYYY
is due to the servicer at the end of
processing cycle, as reported by Servicer.
----------------------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
----------------------------------------------------------------------------------------------------------------------
The date a particular bankruptcy claim was
BANKRUPTCY_FILED_DATE filed. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The chapter under which the bankruptcy was
BANKRUPTCY_CHAPTER_CODE filed.
----------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
----------------------------------------------------------------------------------------------------------------------
The payment due date once the bankruptcy
POST_PETITION_DUE_DATE has been approved by the courts MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
----------------------------------------------------------------------------------------------------------------------
The Date The Loss Mitigation Was Approved
LOSS_MIT_APPR_DATE By The Servicer MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The Type Of Loss Mitigation Approved For A
LOSS_MIT_TYPE Loan Such As;
----------------------------------------------------------------------------------------------------------------------
The Date The Loss Mitigation /Plan Is
LOSS_MIT_EST_COMP_DATE Scheduled To End/Close MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The Date The Loss Mitigation Is Actually
LOSS_MIT_ACT_COMP_DATE Completed MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The date DA Admin sends a letter to the
servicer with instructions to begin
FRCLSR_APPROVED_DATE foreclosure proceedings. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
Date File Was Referred To Attorney to
ATTORNEY_REFERRAL_DATE Pursue Foreclosure MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
Notice of 1st legal filed by an Attorney in
FIRST_LEGAL_DATE a Foreclosure Action MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The date by which a foreclosure sale is
FRCLSR_SALE_EXPECTED_DATE expected to occur. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The amount a property sold for at the No commas(,) or
FRCLSR_SALE_AMT foreclosure sale. 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
The date the servicer initiates eviction of
EVICTION_START_DATE the borrower. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The date the court revokes legal possession
EVICTION_COMPLETED_DATE of the property from the borrower. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The price at which an REO property is No commas(,) or
LIST_PRICE marketed. 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
The date an REO property is listed at a
LIST_DATE particular price. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or
property. dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin MM/DD/YYYY
or by the Servicer.
----------------------------------------------------------------------------------------------------------------------
The date the REO sale of the property is
REO_CLOSING_DATE scheduled to close. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
Classification of how the property is
OCCUPANT_CODE occupied.
----------------------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of the
property.
----------------------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
----------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
The current "as is" value of the property
CURR_PROP_VAL based on brokers price opinion or appraisal. 2
----------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a
broker's price opinion or appraisal.
----------------------------------------------------------------------------------------------------------------------
If applicable:
----------------------------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
----------------------------------------------------------------------------------------------------------------------
The circumstances which caused a borrower
to stop paying on a loan. Code indicates
the reason why the loan is in default for
DELINQ_REASON_CODE this cycle.
----------------------------------------------------------------------------------------------------------------------
Date Mortgage Insurance Claim Was Filed
MI_CLAIM_FILED_DATE With Mortgage Insurance Company. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
----------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,) or
Claim dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
Date Claim Was Filed With Pool Insurance
POOL_CLAIM_FILED_DATE Company MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
Amount of Claim Filed With Pool Insurance No commas(,) or
POOL_CLAIM_AMT Company 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
----------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or
Company dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
No commas(,) or
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
No commas(,) or
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
No commas(,) or
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
No commas(,) or
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 dollar signs ($)
----------------------------------------------------------------------------------------------------------------------
Date VA Claim Was Filed With the Veterans
VA_CLAIM_FILED_DATE Admin MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
Date Veterans Admin. Disbursed VA Claim
VA_CLAIM_PAID_DATE Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------------------------
No commas(,) or
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 dollar signs ($)
Exhibit E-1: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit E-1: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
--------------------------------------------------------
Delinquency Code Delinquency Description
--------------------------------------------------------
001 FNMA-Death of principal mortgagor
--------------------------------------------------------
002 FNMA-Illness of principal mortgagor
--------------------------------------------------------
003 FNMA-Illness of mortgagor's family
member
--------------------------------------------------------
004 FNMA-Death of mortgagor's family
member
--------------------------------------------------------
005 FNMA-Marital difficulties
--------------------------------------------------------
006 FNMA-Curtailment of income
--------------------------------------------------------
007 FNMA-Excessive Obligation
--------------------------------------------------------
008 FNMA-Abandonment of property
--------------------------------------------------------
009 FNMA-Distant employee transfer
--------------------------------------------------------
011 FNMA-Property problem
--------------------------------------------------------
012 FNMA-Inability to sell property
--------------------------------------------------------
013 FNMA-Inability to rent property
--------------------------------------------------------
014 FNMA-Military Service
--------------------------------------------------------
015 FNMA-Other
--------------------------------------------------------
016 FNMA-Unemployment
--------------------------------------------------------
017 FNMA-Business failure
--------------------------------------------------------
019 FNMA-Casualty loss
--------------------------------------------------------
022 FNMA-Energy environment costs
--------------------------------------------------------
023 FNMA-Servicing problems
--------------------------------------------------------
026 FNMA-Payment adjustment
--------------------------------------------------------
027 FNMA-Payment dispute
--------------------------------------------------------
029 FNMA-Transfer of ownership pending
--------------------------------------------------------
030 FNMA-Fraud
--------------------------------------------------------
031 FNMA-Unable to contact borrower
--------------------------------------------------------
INC FNMA-Incarceration
--------------------------------------------------------
Exhibit E-1: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
-------------------------------------------------------
Status Code Status Description
-------------------------------------------------------
09 Forbearance
-------------------------------------------------------
17 Pre-foreclosure Sale Closing Plan
Accepted
-------------------------------------------------------
24 Government Seizure
-------------------------------------------------------
26 Refinance
-------------------------------------------------------
27 Assumption
-------------------------------------------------------
28 Modification
-------------------------------------------------------
29 Charge-Off
-------------------------------------------------------
30 Third Party Sale
-------------------------------------------------------
31 Probate
-------------------------------------------------------
32 Military Indulgence
-------------------------------------------------------
43 Foreclosure Started
-------------------------------------------------------
44 Deed-in-Lieu Started
-------------------------------------------------------
49 Assignment Completed
-------------------------------------------------------
61 Second Lien Considerations
-------------------------------------------------------
62 Veteran's Affairs-No Bid
-------------------------------------------------------
63 Veteran's Affairs-Refund
-------------------------------------------------------
64 Veteran's Affairs-Buydown
-------------------------------------------------------
65 Chapter 7 Bankruptcy
-------------------------------------------------------
66 Chapter 11 Bankruptcy
-------------------------------------------------------
67 Chapter 13 Bankruptcy
-------------------------------------------------------
Exhibit E-2: Standard File Layout - Scheduled/Scheduled
----------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment
----------------------------------------------------------------------------------------------------------
LOAN_NBR Loan Number assigned by investor Text up to 10 digits
----------------------------------------------------------------------------------------------------------
SERVICER LOAN_NBR Servicer Loan Number Text up to 10 digits
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_PMT_AMT P&I constant 2 signs ($)
----------------------------------------------------------------------------------------------------------
NOTE_INT_RATE Gross Interest Rate 4 Max length of 6
----------------------------------------------------------------------------------------------------------
Gross Interest Rate less the Service
NET_RATE Fee Rate 4 Max length of 6
----------------------------------------------------------------------------------------------------------
SERV_FEE_RATE Service Fee Rate 4 Max length of 6
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
NEW_PAY_AMT ARM loan's forecasted P&I constant 2 signs ($)
----------------------------------------------------------------------------------------------------------
ARM loan's forecasted Gross Interest
NEW_LOAN_RATE Rate 4 Max length of 6
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
ACTL_BEG_BAL Beginning Actual Balance 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
ACTL_END_BAL Ending Actual Balance 2 signs ($)
----------------------------------------------------------------------------------------------------------
NEXT_DUE_DATE Borrower's next due date MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_AMT_1 Curtailment Amount 2 signs ($)
----------------------------------------------------------------------------------------------------------
CURT_DATE_1 Due date Curtailment was applied to MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_ADJ_ AMT_1 Curtailment Interest if applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_AMT_2 Curtailment Amount 2 2 signs ($)
----------------------------------------------------------------------------------------------------------
CURT_DATE_2 Due date Curtailment was applied to MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_ADJ_ AMT2 Curtailment Interest if applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_AMT_3 Curtailment Amount 3 2 signs ($)
----------------------------------------------------------------------------------------------------------
CURT_DATE_3 Due date Curtailment was applied to MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_ADJ_AMT3 Curtailment Interest, if applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_BEG_BAL Beginning Scheduled Balance 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_END_BAL Ending Scheduled Balance 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_PRIN_AMT Scheduled Principal portion of P&I 2 signs ($)
----------------------------------------------------------------------------------------------------------
Scheduled Net Interest (less Service No commas(,) or dollar
SCHED_NET_INT Fee) portion of P&I 2 signs ($)
----------------------------------------------------------------------------------------------------------
Liquidation Principal Amt to bring No commas(,) or dollar
LIQ_AMT balance to zero 2 signs ($)
----------------------------------------------------------------------------------------------------------
PIF_DATE Liquidation Date MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
Principal Adjustments made to loan, if No commas(,) or dollar
PRIN_ADJ_AMT applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
Interest Adjustment made to loan, if No commas(,) or dollar
INT_ADJ_AMT applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
No commas(,) or dollar
PREPAYMENT PENALTY AMT Prepayment penalty amount, if applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
Soldier and Sailor Adjustment amount, No commas(,) or dollar
SOILDER_SAILOR ADJ AMT if applicable 2 signs ($)
----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------
Exhibit E-3: Calculation of Realized Loss/Gain Form 332- Instruction Sheet
--------------------------------------------------------------------------
The numbers on the form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees
advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been made
as agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees
advanced is required.
4-12. Complete as applicable. All line entries must be supported by copies
of appropriate statements, vouchers, receipts, bills, canceled
checks, etc., to document the expense. Entries not properly
documented will not be reimbursed to the Servicer.
13. The total of lines 1 through 12.
Credits:
14-21. Complete as applicable. All line entries must be supported by
copies of the appropriate claims forms, EOBs, HUD-1 and/or other
proceeds verification, statements, payment checks, etc. to document
the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on
line 20.
22. The total of lines 14 through 21.
Please note: For HUD/VA loans, use line (15) for Part A/Initial proceeds
and line (16) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
-------------------------------------------------------
Exhibit E-3: Calculation of Realized Loss/Gain Form 332
--------------------------------------------------------
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
------------------- ------------------- --------------------
Servicer Loan No. Servicer Name Servicer Address
------------------- ------------------- --------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
(1)Actual Unpaid Principal Balance of Mortgage Loan $
______________ (1)
(2) Interest accrued at Net Rate
________________ (2)
(3) Accrued Servicing Fees ________________
(3)
(4) Attorney's Fees ________________
(4)
(5) Taxes ________________
(5)
(6) Property Maintenance ________________
(6)
(7) MI/Hazard Insurance Premiums ________________
(7)
(8) Utility Expenses ________________
(8)
(9) Appraisal/BPO ________________
(9)
(10) Property Inspections ________________
(10)
(11) FC Costs/Other Legal Expenses ________________
(11)
(12) Other (itemize) $________________
(12)
Cash for Keys__________________________ ________________
HOA/Condo Fees_________________________ ________________
_______________________________________ ________________
_______________________________________ ________________
Total Expenses $________________
(13)
Credits:
(14) Escrow Balance $________________
(14)
(15) HIP Refund _________________
(15)
(16) Rental Receipts _________________
(16)
(17) Hazard Loss Proceeds _________________
(17)
(18) Primary Mortgage Insurance Proceeds _________________
(18)
(19) Pool Insurance Proceeds _________________
(19)
(20) Proceeds from Sale of Acquired Property
________________ (20)
(21) Other (itemize) _________________
(21)
______________________________________ _________________
______________________________________ _________________
Total Credits $________________
(22)
Total Realized Loss (or Amount of Gain) $________________
(23)
|---------------|
|EXECUTION COPY |
|---------------|
SUNTRUST ASSET FUNDING, LLC
Purchaser
SUNTRUST MORTGAGE, INC.
Seller and Servicer
SELLER'S PURCHASE, WARRANTIES AND SERVICING AGREEMENT
Dated as of November 1, 2005
==============================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.......................................................
Section 1.01 Defined Terms...............................................
ARTICLE II SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF
MORTGAGE FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF
MORTGAGE LOAN DOCUMENTS.....................................................
Section 2.01 Agreement to Purchase.......................................
Section 2.02 Purchase Price..............................................
Section 2.03 Servicing of Mortgage Loans.................................
Section 2.04 Record Title and Possession of Mortgage Files;
Maintenance of Servicing Files..............................
Section 2.05 Books and Records...........................................
Section 2.06 Transfer of Mortgage Loans..................................
Section 2.07 Delivery of Mortgage Loan Documents.........................
Section 2.08 Quality Control Procedures..................................
Section 2.09 Closing.....................................................
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SERVICER;
REPURCHASE; REVIEW OF MORTGAGE LOANS........................................
Section 3.01 Representations and Warranties of the Seller
and the Servicer. ..........................................
Section 3.02 Representations and Warranties as to Individual Mortgage
Loans.......................................................
Section 3.03 Repurchase; Substitution....................................
Section 3.04 Repurchase of Convertible Mortgage Loans....................
Section 3.05 Repurchase of Mortgage Loans With Early Payment Defaults....
Section 3.06 Purchase Price Protection...................................
Section 3.07 Acknowledgement of Anti-Predatory Lending Policies..........
ARTICLE IV ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS...............
Section 4.01 The Servicer to Act as Servicer.............................
Section 4.02 Collection of Mortgage Loan Payments........................
Section 4.03 Realization Upon Defaulted Mortgage Loans...................
Section 4.04 Establishment of Custodial Accounts; Deposits in Custodial
Accounts....................................................
Section 4.05 Permitted Withdrawals From the Custodial Account............
Section 4.06 Establishment of Escrow Accounts; Deposits in Accounts......
Section 4.07 Permitted Withdrawals From the Escrow Account...............
Section 4.08 Payment of Taxes, Insurance and Charges; Maintenance of
Primary Mortgage Insurance or LPMI Policies; Collections
Thereunder..................................................
Section 4.09 Transfer of Accounts........................................
Section 4.10 Maintenance of Hazard Insurance.............................
Section 4.11 Maintenance of Mortgage Impairment Insurance Policy.........
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance...................................................
Section 4.13 Title, Management and Disposition of REO Property...........
Section 4.14 Notification of Maturity Date...............................
ARTICLE V PAYMENTS TO THE PURCHASER.........................................
Section 5.01 Distributions...............................................
Section 5.02 Statements to the Purchaser.................................
Section 5.03 Monthly Advances by the Servicer............................
Section 5.04 Liquidation Reports.........................................
ARTICLE VI GENERAL SERVICING PROCEDURES.....................................
Section 6.01 Assumption Agreements.......................................
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.....
Section 6.03 Servicing Compensation......................................
Section 6.04 Annual Statement as to Compliance...........................
Section 6.05 Annual Independent Certified Public Accountants' Servicing
Report......................................................
Section 6.06 Purchaser's Right to Examine Servicer Records...............
Section 6.07 Servicer Shall Provide Information as Reasonably Required...
ARTICLE VII THE SELLER AND THE SERVICER.....................................
Section 7.01 Indemnification; Third Party Claims.........................
Section 7.02 Merger or Consolidation of the Seller or the Servicer.......
Section 7.03 Limitation on Liability of the Seller and Others............
Section 7.04 Servicer Not to Resign......................................
Section 7.05 No Transfer of Servicing....................................
ARTICLE VIII DEFAULT........................................................
Section 8.01 Events of Default...........................................
Section 8.02 Waiver of Defaults..........................................
ARTICLE IX TERMINATION......................................................
Section 9.01 Termination.................................................
ARTICLE X RECONSTITUTION OF MORTGAGE LOANS..................................
Section 10.01 Reconstitution of Mortgage Loans...........................
ARTICLE XI MISCELLANEOUS PROVISIONS.........................................
Section 11.01 Successor to the Servicer..................................
Section 11.02 Amendment .................................................
Section 11.03 Recordation of Agreement...................................
Section 11.04 Governing Law..............................................
Section 11.05 Notices ...................................................
Section 11.06 Severability of Provisions.................................
Section 11.07 Exhibits...................................................
Section 11.08 General Interpretive Principles............................
Section 11.09 Reproduction of Documents..................................
Section 11.10 Confidentiality of Information.............................
Section 11.11 Recordation of Assignments of Mortgage.....................
Section 11.12 Assignment by Purchaser....................................
Section 11.13 No Partnership.............................................
Section 11.14 Execution; Successors and Assigns..........................
Section 11.15 Entire Agreement...........................................
Section 11.16 No Solicitation............................................
Section 11.17 Costs......................................................
EXHIBITS
A-1 Contents of Mortgage File
A-2 Contents of Servicing File
B Form of Custodial Account Letter Agreement
C Form of Escrow Account Letter Agreement
D Form of Assignment, Assumption and Recognition Agreement
E Form of Monthly Servicing Report
F Form of Assignment and Conveyance
G Request for Release of Documents and Receipt
H Form of Bring Down Letter
I Form of Annual Certification
This is a Seller's Purchase, Warranties and Servicing Agreement,
dated as November 1, 2005 and is executed between SunTrust Asset Funding, LLC,
as purchaser (the "Purchaser"), and SunTrust Mortgage, Inc., as seller (in such
capacity, the "Seller") and as servicer (in such capacity, the "Servicer").
W I T N E S S E T H :
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Seller and the Seller has heretofore agreed to sell to the Purchaser certain
Mortgage Loans, servicing rights retained, from time to time, pursuant to the
terms of a letter agreement by and between the Seller and the Purchaser (the
"Purchase Price and Terms Letter").
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed
of trust or other security instrument creating a first or second lien on a
residential dwelling located in the jurisdiction indicated on the related
Mortgage Loan Schedule, which is annexed to the related Assignment and
Conveyance. The Mortgage Loans as described herein shall be delivered in groups
of whole loans (each, a "Mortgage Loan Package") on various dates as provided
herein (each, a "Closing Date"); and
WHEREAS, the Purchaser, the Seller and the Servicer wish to
prescribe the representations and warranties of the Seller with respect to
itself and the Mortgage Loans and the management, servicing and control of the
Mortgage Loans by the Servicer;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser, the Seller
and the Servicer agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meaning
specified in this Article:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices (including collection procedures) of prudent
mortgage banking institutions which service mortgage loans of the same type as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, and which are in accordance with Xxxxxx Xxx servicing practices and
procedures, for MBS pool mortgages, as defined in the Xxxxxx Mae Guides
including future updates.
Adjustable Rate Mortgage Loan: An Adjustable Rate Mortgage Loan
purchased pursuant to this Agreement.
Adjustment Date: With respect to each Adjustable Rate Mortgage Loan,
the date set forth in the related Mortgage Note on which the Mortgage Interest
Rate on the Mortgage Loan is adjusted in accordance with the terms of the
Mortgage Note.
Agency Transfer: The sale or transfer by the Purchaser of some or
all of the Mortgage Loans to Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: This Seller's Purchase, Warranties and Servicing
Agreement including all exhibits hereto, amendments hereof and supplements
hereto.
Appraised Value: With respect to any Mortgaged Property, the lesser
of (i) the value thereof as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the underwriting requirements of the originator, and (ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan, provided, however, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property is based solely upon the
value determined by an appraisal made for the originator of such Refinanced
Mortgage Loan at the time of origination of such Refinanced Mortgage Loan by an
appraiser who met the underwriting requirements of the originator.
Assignment and Conveyance: The assignment and conveyance of the
Mortgage Loans to be purchased on the applicable Closing Date in the form set
forth in Exhibit F hereto.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a legal holiday in the State of New York or a state in which the principal place
of business of the Purchaser, the Seller or the Servicer is located, or (iii) a
day on which banks in the State of New York or a state in which the principal
place of business of the Purchaser, the Seller or the Servicer is located are
authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates set forth in the related Purchase
Price and Terms Letter on which the Purchaser from time to time shall purchase
and the Seller from time to time shall sell to the Purchaser, the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Code: The Internal Revenue Code of 1986, as the same may be amended
from time to time (or any successor statute thereto).
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Remittance Date, the lesser of (i)
the aggregate Servicing Fee (calculated without giving consideration to clause
(b) of the definition of Servicing Fee) payable to the Servicer for such
Remittance Date and (ii) the aggregate Prepayment Interest Shortfall for such
Remittance Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any Adjustable Rate Mortgage Loan
purchased pursuant to this Agreement as to which the related Mortgage Note
permits the Mortgagor to convert the Mortgage Interest Rate on such Mortgage
Loan to a fixed Mortgage Interest Rate.
Co-op Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Co-op Stock: With respect to a Co-op Loan, the single outstanding
class of stock, partnership interest or other ownership instrument in the
related residential cooperative housing corporation.
Credit Score: The credit score for each Mortgage Loan shall be the
minimum of two credit bureau scores obtained at origination or such other time
by the Seller. If two credit bureau scores are obtained, the Credit Score will
be the lower score. If three credit bureau scores are obtained, the Credit Score
will be the middle of the three. When there is more than one applicant, the
lowest of the applicants' Credit Scores will be used. There is only one (1)
score for any loan regardless of the number of borrowers and/or applicants.
Custodial Account: Each separate demand account or accounts created
and maintained pursuant to Section 4.04 which shall be entitled "SunTrust
Mortgage, Inc., in trust for the [Purchaser], owner of various whole loan
series" and shall be established as an Eligible Account, in the name of the
Person that is the "Purchaser" with respect to the related Mortgage Loans.
Cut-off Date: With respect to each Mortgage Loan Package, the date
on or prior to the related Closing Date set forth in the related Purchase Price
and Terms Letter.
Determination Date: The 15th day (or if such 15th day is not a
Business Day, the Business Day immediately preceding such 15th day) of the month
of the related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Remittance Date, the period
commencing on the second day of the month preceding the month of such Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Account: An account established and maintained: (a) within
FDIC insured accounts (or other accounts with comparable insurance coverage
acceptable to the Rating Agencies) created, maintained and monitored by the
Servicer so that all funds deposited therein are fully insured, (b) with the
corporate trust department of a financial institution assigned a long-term debt
rating of not less than Baa3, and a short term debt rating of P3, from Xxxxx'x
Investors Services, Inc. and, if ownership of the Mortgage Loans is evidenced by
mortgaged backed securities, the equivalent ratings of the rating agencies, and
held such that the rights of the Purchaser and the owner of the Mortgage Loans
shall be fully protected against the claims of any creditors of the Seller and
of any creditors or depositors of the institution in which such account is
maintained or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account is
established pursuant to clause (b) or (c) of the preceding sentence, the
Servicer shall provide the Purchaser with written notice on the Business Day
following the date on which the applicable institution fails to meet the
applicable ratings requirements.
Eligible Institution: An institution having (i) the highest
short-term debt rating, and one of the two highest unsecured long-term debt
ratings of the Rating Agencies; or (ii) with respect to any Custodial Account,
one of the two highest unsecured long-term debt ratings of the Rating Agencies.
Eligible Investments: Any one or more of the following obligations
or securities:
(a) direct obligations of, and obligations fully guaranteed by the
United States of America or any agency or instrumentality of the United States
of America the obligations of which are backed by the full faith and credit of
the United States of America;
(b) (i) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal and/or state banking authorities,
provided that the commercial paper and/or the short-term deposit rating and/or
the long-term unsecured debt obligations or deposits of such depository
institution or trust company at the time of such investment or contractual
commitment providing for such investment are rated in one of the two highest
rating categories by each Rating Agency and (ii) any other demand or time
deposit or certificate of deposit that is fully insured by the FDIC;
(c) repurchase obligations with a term not to exceed thirty (30)
days and with respect to (i) any security described in clause (a) above and
entered into with a depository institution or trust company (acting as
principal) described in clause (b)(ii) above;
(d) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or any
state thereof that are rated in one of the two highest rating categories by each
Rating Agency at the time of such investment or contractual commitment providing
for such investment; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that investments
therein will cause the then outstanding principal amount of securities issued by
such corporation and held as Eligible Investments to exceed 10% of the aggregate
outstanding principal balances of all of the Mortgage Loans and Eligible
Investments;
(e) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof) which are rated
in one of the two highest rating categories by each Rating Agency at the time of
such investment;
(f) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to each Rating Agency as evidenced
in writing by each Rating Agency; and
(g) any money market funds the collateral of which consists of
obligations fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (which may
include repurchase obligations secured by collateral described in clause (a))
and other securities and which money market funds are rated in one of the two
highest rating categories by each Rating Agency.
provided, however, that no instrument or security shall be an Eligible
Investment if such instrument or security evidences a right to receive only
interest payments with respect to the obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity in excess of 120% of the yield to maturity at par or if such
investment or security is purchased at a price greater than par.
Equity: With respect to any second lien Mortgage Loan, the Appraised
Value, less the unpaid principal balance of the related First Lien.
Equity Loan-to-Value: With respect to any second lien Mortgage Loan,
the original principal balance of such Mortgage Loan, divided by the Equity.
Escrow Account: Each separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "SunTrust Mortgage,
Inc., in trust for the [Purchaser], owner of various whole loan series, and
various Mortgagors" and shall be established as an Eligible Account, in the name
of the Person that is the "Purchaser" with respect to the related Mortgage
Loans.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 8.01.
Xxxxxx Mae: The entity formerly known as the Federal National
Mortgage Association, or any successor thereto.
Xxxxxx Xxx Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Xxx
Servicers' Guide and all amendments or additions thereto, including, but not
limited to, future updates thereof.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer
pursuant to Section 4.12.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as the same may be amended from time to time.
First Lien: With respect to any second lien Mortgage Loan, the
mortgage loan relating to the corresponding Mortgaged Property having a first
priority lien.
First Remittance Date: The eighteenth (18th) day of the month
following each respective Closing Date, or if such day is not a Business Day,
the first Business Day immediately preceding such date.
Fixed Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement which bears a fixed Mortgage Interest Rate during the life of the
loan.
Xxxxxxx Mac: The entity formerly known as the Federal Home Loan
Mortgage Corporation, or any successor thereto.
Xxxxxxx Mac Guides: The Xxxxxxx Xxx Xxxxxxx' Guide and the Xxxxxxx
Mac Servicers' Guide and all amendments or additions thereto, including, but not
limited to, any future updates thereof.
GAAP: Generally accepted accounting principles, consistently
applied.
Gross Margin: With respect to any Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note and the related
Mortgage Loan Schedule that is added to the Index on each Adjustment Date in
accordance with the terms of the related Mortgage Note to determine the new
Mortgage Interest Rate for such Mortgage Loan.
HUD: The United States Department of Housing and Urban Development
or any successor thereto.
Index: With respect to any Adjustable Rate Mortgage Loan, the index
identified on the Mortgage Loan Schedule and set forth in the related Mortgage
Note for the purpose of calculating the Mortgage Interest Rate thereon.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Only Mortgage Loan: A Mortgage Loan that only requires
payments of interest for a period of time specified in the related Mortgage
Note.
Lender Paid Mortgage Insurance Policy Program or LPMI Policies: A
program or policy in which, for any Mortgage Loan underwritten with an LTV
greater than 80.00% and less than 97.00%, the owner or servicer of such Mortgage
Loan is responsible for the premiums associated with the mortgage insurance
policy.
Liquidation Proceeds: Amounts received in connection with the
partial or complete liquidation of a defaulted Mortgage Loan, whether through
the sale or assignment of such Mortgage Loan, trustee's sale, foreclosure sale
or otherwise, or in connection with the sale of the Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio of the original outstanding principal amount of the Mortgage Loan and,
with respect to any second lien Mortgage Loan, the outstanding principal amount
of any related First Lien as of the date of origination of such mortgage loan,
to (i) the Appraised Value of the related Mortgaged Property at origination with
respect to a Refinanced Mortgage Loan, and (ii) the lesser of the Appraised
Value of the related Mortgaged Property at origination or the purchase price of
the related Mortgaged Property with respect to all other Mortgage Loans.
Maximum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Mortgage Loan Schedule
and in the related Mortgage Note and is the maximum interest rate to which the
Mortgage Interest Rate on such Mortgage Loan may be increased on any Adjustment
Date.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
Minimum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Mortgage Loan Schedule
and in the related Mortgage Note and is the minimum interest rate to which the
Mortgage Interest Rate on such Mortgage Loan may be decreased on any Adjustment
Date.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Advance: The payment required to be made by the Servicer
with respect to any Remittance Date pursuant to Section 5.03.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
pursuant to the terms of the related Mortgage Note.
Mortgage: With respect to a Mortgage Loan that is not a Co-op Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first or second lien on an unsubordinated estate in fee simple in real
property securing the Mortgage Note; except that with respect to real property
located in jurisdictions in which the use of leasehold estates for residential
properties is a widely-accepted practice, the mortgage, deed of trust or other
instrument securing the Mortgage Note may secure and create a first or second
lien upon a leasehold estate of the Mortgagor. With respect to a Co-op Loan, the
related Security Agreement.
Mortgage File: With respect to each Mortgage Loan, the documents
pertaining thereto specified in Exhibit A-1 and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan in accordance with the provisions of the related Mortgage
Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes
without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, any escrow accounts related to the Mortgage Loan, and
all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
Mortgage Loan Documents: The documents contained in a Mortgage File.
Mortgage Loan Package: As defined in the Recitals to this Agreement.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the Mortgage Interest Rate less the Servicing Fee Rate and the rate at which the
premium for any LPMI Policy accrues, if applicable.
Mortgage Loan Schedule: The schedule of Mortgage Loans annexed to
the related Assignment and Conveyance, each such schedule setting forth the
following information with respect to each Mortgage Loan in the related Mortgage
Loan Package:
(1) the Seller's Mortgage Loan identifying number;
(2) the Mortgagor's name;
(3) the street address of the Mortgaged Property including the state
and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied;
(5) the type of residential property constituting the Mortgaged
Property;
(6) the original months to maturity or the remaining months to
maturity from the related Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule;
(7) the Loan-to-Value Ratio at origination and as of the related
Cut-off Date;
(8) with respect to any second lien Mortgage Loan, the Equity
Loan-to-Value Ratio at origination and as of the related Cut-off Date;
(9) the Mortgage Interest Rate at origination and as of the related
Cut-off Date;
(10) the Mortgage Loan origination date;
(11) the paid through date;
(12) the stated maturity date of the Mortgage Loan and of the First
Lien, if applicable;
(13) the amount of the Monthly Payment as of the related Cut-off
Date;
(14) the original principal amount of the Mortgage Loan and the
principal balance of the related First Lien, if applicable, as of the date of
origination;
(15) the Scheduled Principal Balance of the Mortgage Loan and the
principal balance of the related First Lien, if applicable, as of the related
Cut-off Date;
(16) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
(17) a code indicating the documentation style (i.e. full,
alternative or reduced);
(18) the number of times during the twelve (12) month period
preceding the related Closing Date that any Monthly Payment has been received
thirty (30) or more days after its Due Date;
(19) the date on which the first payment is due;
(20) a code indicating whether or not the Mortgage Loan is insured
as to payment defaults by a Primary Mortgage Insurance Policy; and, in the case
of any Mortgage Loan which is insured as to payment defaults by a Primary
Mortgage Insurance Policy, the name of the provider of such Primary Mortgage
Insurance Policy;
(21) a code indicating whether or not the Mortgage Loan is insured
as to payment defaults by a LPMI Policy and, in the case of any Mortgage Loan
which is insured as to payment defaults by a LPMI Policy, a percentage
representing the amount of the related insurance premium;
(22) a code indicating whether or not the Mortgage Loan is the
subject of a Prepayment Penalty as well as the terms of the Prepayment Penalty;
(23) the Primary Mortgage Insurance Policy certificate number, if
applicable;
(24) the Primary Mortgage Insurance Policy coverage percentage, if
applicable;
(25) a code indicating the Credit Score of the Mortgagor at the time
of origination of the Mortgage Loan;
(26) a code indicating the credit grade and specific
loan/underwriting program of each Mortgage Loan as assigned by the Seller
pursuant to the Underwriting Standards;
(27) the loan type (i.e. fixed, adjustable; 2/28, 3/27, 5/25, etc.);
(28) with respect to each Adjustable Rate Mortgage Loan, the first
Adjustment Date and the Adjustment Date frequency;
(29) with respect to each Adjustable Rate Mortgage Loan, the Gross
Margin;
(30) with respect to each Adjustable Rate Mortgage Loan, the Maximum
Mortgage Interest Rate under the terms of the Mortgage Note;
(31) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Interest Rate under the terms of the Mortgage Note;
(32) with respect to each Adjustable Rate Mortgage Loan, the
Periodic Rate Cap;
(33) with respect to each Adjustable Rate Mortgage Loan, the first
Adjustment Date immediately following the related Cut-off Date;
(34) with respect to each Adjustable Rate Mortgage Loan, the Index;
(35) a code indicating whether the Mortgage Loan is a second lien
Mortgage Loan;
(36) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan;
(37) a code indicating whether the Mortgage Loan is an Interest Only
Mortgage Loan; and
(38) with respect to each Interest Only Mortgage Loan, the duration
of the related interest only period.
With respect to the Mortgage Loans in the aggregate in each Mortgage
Loan Package, the Mortgage Loan Schedule shall set forth the following
information, as of the Cut-off Date unless otherwise specified:
(1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the
Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage
Loans;
(4) the weighted average original months to maturity of the Mortgage
Loans and the weighted average remaining months to maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the underlying real property securing repayment of a Mortgage Note,
consisting of a fee simple parcel of real estate or a leasehold estate, the term
of which is equal to or longer than the term of the related Mortgage Note. With
respect to a Co-op Loan, the related Co-op Stock and Co-op Lease securing the
indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Mortgagor Personal Information: Any information, including, but not
limited to, all personal information about a Mortgagor that is disclosed to the
Seller or Servicer, or the Purchaser, by or on behalf of the Mortgagor.
OCC: Office of the Comptroller of the Currency, its successors and
assigns.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Senior Vice President or
a Vice President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Seller, and delivered to the
Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
OTS: Office of Thrift Supervision, its successors and assigns.
Pass-Through Transfer: As defined in Section 10.01(a)(iii).
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan and any Adjustment Date therefor, a number of percentage points per annum
that is set forth in the related Mortgage Loan Schedule and in the related
Mortgage Note, which is the maximum amount by which the Mortgage Interest Rate
for such Mortgage Loan may increase (without regard to the Maximum Mortgage
Interest Rate) or decrease (without regard to the Minimum Mortgage Interest
Rate) on such Adjustment Date from the Mortgage Interest Rate in effect
immediately prior to such Adjustment Date, which may be a different amount with
respect to the first Adjustment Date.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Interest Shortfall: As to any Remittance Date and
Principal Prepayment in full, the difference between (i) one full month's
interest at the applicable Mortgage Interest Rate (after giving effect to any
applicable relief act reduction, debt service reduction and deficient
valuation), as reduced by the Servicing Fee Rate, on the outstanding principal
balance of the related Mortgage Loan immediately prior to such Principal
Prepayment and (ii) the amount of interest actually received with respect to
such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty: With respect to each Mortgage Loan, the penalty
if the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 3.02(cc), or any
replacement policy therefor obtained by the Servicer pursuant to Section 4.08.
Prime Rate: The prime rate announced to be in effect from time to
time as published as the average rate in The Wall Street Journal (Northeast
Edition).
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan which is received in advance of its scheduled
Due Date, including any Prepayment Penalty or premium thereon and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment
related to such Mortgage Loan.
Purchase Price: As defined in Section 2.02.
Purchase Price and Terms Letter: As defined in the Recitals to this
Agreement which may also be a form of trade execution notice.
Purchaser: SunTrust Asset Funding, LLC, its successors in interest
and assigns.
Qualified Appraiser: With respect to each Mortgage Loan, an
appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and such appraiser and the appraisal made by such appraiser both satisfy
the requirements of Xxxxxx Xxx or Xxxxxxx Mac and Title XI of FIRREA and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided by the insurance policy issued by
it, approved as an insurer by Xxxxxx Mae and Xxxxxxx Mac.
Rating Agencies: Standard & Poor's Ratings Services, a division of
The XxXxxx- Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc. or, in the
event that some or all ownership of the Mortgage Loans is evidenced by
mortgage-backed securities, the nationally recognized rating agencies issuing
ratings with respect to such securities, if any.
Reconstitution: Any Whole Loan Transfer, Agency Transfer or
Pass-Through Transfer.
Refinanced Mortgage Loan: A Mortgage Loan which was made to a
Mortgagor who owned the Mortgaged Property prior to the origination of such
Mortgage Loan and the proceeds of which were used in whole or part to satisfy an
existing mortgage.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The 18th day of each month, beginning with the
First Remittance Date, or if such day is not a Business Day, the first Business
Day immediately preceding such date.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Proceeds: Amounts received by the Servicer in
connection with an REO Disposition.
REO Property: A Mortgaged Property acquired by or on behalf of the
Purchaser in full or partial satisfaction of the related Mortgage as described
in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the greater of (A) the product of the percentage of par stated in the
related Purchase Price and Terms Letter and the outstanding principal balance of
the Mortgage Loan and (B) the outstanding principal balance of the Mortgage
Loan, plus (ii) interest on such outstanding principal balance at the related
Mortgage Interest Rate from the date through which interest was last distributed
to the Purchaser (from payments from the related Mortgagor or from Monthly
Advances) through the last day of the month in which such repurchase occurs,
plus (iii) third party expenses incurred in connection with the transfer of the
Mortgage Loan being repurchased; less amounts received or advanced in respect of
such repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase, plus (iv) any unreimbursed Servicing
Advances or Servicing Fees related to such Mortgage Loan, plus (v) any costs or
damages incurred by the Purchaser in connection with any predatory or abusive
lending laws.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
Scheduled Principal Balance: As to each Mortgage Loan and any date
of determination, (i) the principal balance of such Mortgage Loan at the Cut-off
Date after giving effect to payments of principal due on or before such date,
whether or not received, minus (ii) all amounts previously distributed to the
Purchaser with respect to the Mortgage Loan representing payments or recoveries
of principal or advances in lieu thereof.
Security Agreement: With respect to a Co-op Loan, the agreement or
mortgage creating a security interest in favor of the originator of the Co-op
Loan in the related Co-op Stock.
Seller's Officer's Certificate: A certificate signed by the Chairman
of the Board, President, any Vice President or Treasurer of Seller stating the
date by which Seller expects to receive any missing documents sent for recording
from the applicable recording office.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of a Mortgaged Property, (b) any enforcement,
administrative or judicial proceedings, or any legal work or advice specifically
related to servicing the Mortgage Loans, including but not limited to,
foreclosures, bankruptcies, condemnations, drug seizures, elections,
foreclosures by subordinate or superior lienholders, and other legal actions
incidental to the servicing of the Mortgage Loans (provided that such expenses
are reasonable and that the Servicer specifies the Mortgage Loan(s) to which
such expenses relate, and provided further that any such enforcement,
administrative or judicial proceeding does not arise out of a breach of any
representation, warranty or covenant of the Seller hereunder), (c) the
management and liquidation of any REO Property, (d) taxes, assessments, water
rates, sewer rates and other charges which are or may become a lien upon the
Mortgaged Property, and Primary Mortgage Insurance Policy premiums and fire and
hazard insurance coverage, (e) any expenses reasonably sustained by the
Servicer, with respect to the liquidation of the Mortgaged Property in
accordance with the terms of this Agreement and (f) compliance with the
obligations under Section 4.08.
Servicing Fee: As to each Mortgage Loan Package, the excess, if any,
of (a) the amount of the fee the Purchaser shall pay to the Servicer for
servicing the Mortgage Loans in accordance with the terms of this Agreement,
which shall, with respect to each Mortgage Loan, for a period of one full month,
be equal to one twelfth of the product of (i) the Servicing Fee Rate and (ii)
the Scheduled Principal Balance of such Mortgage Loan as of the first day of the
month for which such fee is being calculated over (b) Compensating Interest
payable for such month. Such fee shall be payable monthly (a pro rata Servicing
Fee shall be paid for any partial month).
Servicing Fee Rate: The rate, as set forth in the related Purchase
Price and Terms Letter.
Servicing File: With respect to each Mortgage Loan, the documents
pertaining thereto specified in Exhibit A-2 and copies of all documents for such
Mortgage Loan specified in Exhibit A-1.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Purchaser upon request, as such list may from time to time be amended.
Underwriting Standards: As to each Mortgage Loan, the Seller's
underwriting guidelines in effect as of the related Closing Date, which
underwriting guidelines have been provided to the Purchaser.
Whole Loan Transfer: As defined in Section 10.01(a)(i).
ARTICLE II.
SERVICING OF MORTGAGE LOANS;
RECORD TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section 2.01 Agreement to Purchase.
The Seller agrees to sell and the Purchaser agrees to purchase on
each Closing Date pursuant to this Agreement and the related Purchase Price and
Terms Letter the Mortgage Loans being sold by the Seller and listed on the
Mortgage Loan Schedule, servicing rights retained, having an aggregate Scheduled
Principal Balance in an amount as set forth in the related Purchase Price and
Terms Letter, or in such other amount as agreed by the Purchaser and the Seller
as evidenced by the actual aggregate Scheduled Principal Balance of the Mortgage
Loans as of the Cut-off Date accepted by the Purchaser on such Closing Date. The
Seller shall deliver in an electronic format the Mortgage Loan Schedule for the
Mortgage Loans to be purchased on such Closing Date to the Purchaser at least
four (4) Business Days prior to such Closing Date.
Section 2.02 Purchase Price.
The Purchase Price for the Mortgage Loans in a Mortgage Loan Package
shall be equal to the sum of (a) the percentage of par as stated in the related
Purchase Price and Terms Letter (subject to adjustment as provided therein),
multiplied by the aggregate Scheduled Principal Balance of Mortgage Loans as of
the related Cut-off Date listed on the related Mortgage Loan Schedule plus (b)
accrued interest on the aggregate Scheduled Principal Balance of the related
Mortgage Loans at the weighted average Mortgage Loan Remittance Rate of such
Mortgage Loans from the related Cut-off Date to but not including such Closing
Date (the "Purchase Price"). If so provided in the related Purchase Price and
Terms Letter, portions of the Mortgage Loans shall be priced separately.
The Purchase Price as set forth in the preceding paragraph for the
Mortgage Loans in a Mortgage Loan Package shall be paid on the related Closing
Date by wire transfer of immediately available funds.
With respect to each Mortgage Loan, the Purchaser shall be entitled
to (1) the principal portion of all Monthly Payments due after the related
Cut-off Date, (2) all other recoveries of principal collected on or after the
related Cut-off Date (provided, however, that the principal portion of all
Monthly Payments due on or before the related Cut-off Date and collected by the
Servicer or any successor servicer after the related Cut-off Date shall belong
to the Seller), and (3) all payments of interest at the Mortgage Loan Remittance
Rate on the Mortgage Loans (minus that portion of any such payment which is
allocable to the period prior to the related Cut-off Date). The Scheduled
Principal Balance of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal due on or before the
related Cut-off Date whether or not collected, together with any unscheduled
Principal Prepayments collected prior to the related Cut-off Date; provided,
however, that Monthly Payments for a Due Date beyond the related Cut-off Date
shall not be applied to the principal balance as of the related Cut-off Date.
Such Monthly Payments shall be the property of the Purchaser. The Seller shall
deposit any such Monthly Payments into the Custodial Account.
Section 2.03 Servicing of Mortgage Loans.
On each Closing Date, the Mortgage Loans in the related Mortgage
Loan Package will be sold by the Seller to the Purchaser on a servicing retained
basis.
Simultaneously with the execution and delivery of this Agreement,
for each Mortgage Loan Package, the Servicer hereby agrees to service the
Mortgage Loans listed on the Mortgage Loan Schedule in accordance with Accepted
Servicing Practices and this Agreement. The rights of the Purchaser to receive
payments with respect to the related Mortgage Loans shall be as set forth in
this Agreement.
Section 2.04 Record Title and Possession of Mortgage Files;
Maintenance of Servicing Files.
As of each Closing Date, the Seller will have sold, transferred,
assigned, set over and conveyed to the Purchaser, without recourse, and the
Seller hereby acknowledges that the Purchaser will have, all the right, title
and interest of the Seller in and to the Mortgage Loans. In accordance with
Section 2.07, the Seller shall deliver at its own expense, the Mortgage Files
for the related Mortgage Loans to Purchaser or its designee. The possession of
each Servicing File by the Servicer is for the sole purpose of servicing the
related Mortgage Loan. From each Closing Date, the ownership of each related
Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the
related Mortgage File and all rights, benefits, proceeds and obligations arising
therefrom or in connection therewith, has been vested in the Purchaser. All
rights arising out of the Mortgage Loans including, but not limited to, all
funds received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into the
possession of the Seller shall be received and held by the Seller in trust for
the benefit of the Purchaser as the owner of the Mortgage Loans. Any portion of
the Mortgage Files retained by the Seller shall be appropriately identified in
the Seller's computer system to clearly reflect the ownership of the Mortgage
Loans by the Purchaser.
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Seller agrees that it will cause, at its own expense, the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the Seller to
the Purchaser in accordance with this Agreement by including (or deleting, in
the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R) System
to identify the Purchaser of such Mortgage Loans. The Seller further agrees that
it will not, and will not permit the Servicer to, and the Servicer agrees that
it will not, alter the information referenced in this paragraph with respect to
any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
Section 2.05 Books and Records.
The sale of each Mortgage Loan will be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall maintain, a complete set of books and records for the Mortgage
Loans sold by it which shall be appropriately identified in the Seller's
computer system to clearly reflect the ownership of the Mortgage Loans by the
Purchaser. In particular, the Seller shall maintain in its possession, available
for inspection by the Purchaser, or its designee and shall deliver to the
Purchaser upon demand, evidence of compliance with all federal, state and local
laws, rules and regulations, and requirements of Xxxxxx Mae or Xxxxxxx Mac, as
applicable, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval by
Seller and periodic inspection reports as required by Section 4.13. To the
extent that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Seller
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Seller complies with the requirements of the Xxxxxx
Mae Guides.
In addition to the foregoing, the Seller shall provide to any
supervisory agents or examiners that regulate the Purchaser, including but not
limited to, the OTS, the FDIC and other similar entities, access, during normal
business hours, upon reasonable advance notice to the Seller and without charge
to the Seller or such supervisory agents or examiners, to any documentation
regarding the Mortgage Loans that may be required by any applicable regulator.
Section 2.06 Transfer of Mortgage Loans.
The Seller and Servicer shall keep at its office books and records
in which, subject to such reasonable regulations as it may prescribe, the Seller
and Servicer shall note transfers of Mortgage Loans. No transfer of a Mortgage
Loan may be made unless such transfer is in compliance with the terms of Section
11.12. For the purposes of this Agreement, the Seller and Servicer shall be
under no obligation to deal with any person with respect to this Agreement or
any Mortgage Loan unless a properly executed Assignment, Assumption and
Recognition Agreement in the form of Exhibit D with respect to such Mortgage
Loan has been delivered to the Seller and Servicer. Upon receipt of notice of
the transfer, the Seller and Servicer shall xxxx its books and records to
reflect the ownership of the Mortgage Loans by such assignee, and the previous
Purchaser shall be released from its obligations hereunder with respect to the
Mortgage Loans sold or transferred.
Section 2.07 Delivery of Mortgage Loan Documents.
With respect to each Mortgage Loan, the Seller shall deliver and
release to the Purchaser, or its designee, under a bailee or custodial
agreement, (a) on or prior to the related Closing Date (or such later date as
the Purchaser may reasonably request), the original Mortgage Note endorsed in
blank and the original Assignment of Mortgage assigned in blank and (b) the
other Mortgage Loan Documents within thirty (30) days following the related
Closing Date.
In the event that the Seller fails to deliver such original or copy
of any Mortgage Loan Document (except for the applicable Mortgage Note or
related lost note affidavit, to the extent not set forth on the related bailee
or custodial certification, which Mortgage Note or lost note affidavit must be
delivered on or prior to the Closing Date) to the Purchaser or its designee
within thirty (30) days following the related Closing Date, and in the event
that the Seller does not cure such failure within sixty (60) days after receipt
of written notification of such failure from the Purchaser, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by the Seller at a
price and in the manner specified in Subsection 3.03. The foregoing repurchase
obligation shall not apply in the event the Seller cannot cause the Servicer to
deliver such original or clerk-certified copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that the Seller shall cause the Servicer instead to
deliver a recording receipt of such recording office or, if such recording
receipt is not available, an Officer's Certificate of a servicing officer of the
Servicer, confirming that such document has been accepted for recording and that
the Servicer shall immediately deliver such document upon receipt; and, provided
further, that if the Seller cannot cause the Servicer to deliver such original
or clerk-certified copy of any document submitted for recordation to the
appropriate public recording office within the specified time for any reason
within twelve (12) months after receipt of written notification of such failure
from the Purchaser, the Seller shall repurchase the related Mortgage Loan at the
price and in the manner specified in Subsection 3.03.
Pursuant to Section 11.11 and for each Mortgage Loan that is not a
MERS Mortgage Loan, the Seller shall be responsible for recording the
Assignments of Mortgage (or Form UCC-3's for Co-op Loans). The Seller shall pay
all initial recording fees, for the Assignments of Mortgage (or Form UCC-3's for
Co-op Loans) and any other fees in connection with the transfer of the Mortgage
Loan Documents to the Purchaser or its designee.
Any review by the Purchaser or its designee of the Mortgage Files
shall in no way alter or reduce the Seller's obligations hereunder.
If the Purchaser or its designee discovers any defect with respect
to any document constituting part of a Mortgage File, the Purchaser shall, or
shall cause its designee to, give written specification of such defect to the
Seller and the Seller shall cure or repurchase such Mortgage Loan in accordance
with Section 3.03.
The Servicer shall forward to the Purchaser, or its designee, copies
of documents evidencing an assumption, modification, consolidation or extension
of any Mortgage Loan entered into in accordance with Section 4.01 or 6.01. In
addition, within one week of their return from the applicable public recording
office, the Servicer shall provide the original of any document submitted for
recordation certified by the appropriate public recording office to be a true
and complete copy of the original.
Section 2.08 Quality Control Procedures.
The Seller must have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
must be capable of evaluating and monitoring the overall quality of its loan
production and servicing activities. The program is to ensure that the Mortgage
Loans are originated and serviced in accordance with prudent mortgage banking
practices and accounting principles; guard against dishonest, fraudulent, or
negligent acts; and guard against errors and omissions by officers, employees,
or other authorized persons.
Section 2.09 Closing.
The closing for the purchase and sale of the Mortgage Loans shall
take place on the related Closing Date. The closing shall be either: by
telephone, confirmed by letter or wire as the parties shall agree, or conducted
in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on the related
Closing Date shall be subject to each of the following conditions:
(a) at least five (5) Business Days prior to the related Closing
Date, the Seller shall deliver to the Purchaser a magnetic
diskette, or transmit by modem or e-mail, a listing on a
loan-level basis of the information contained in the Mortgage
Loan Schedule;
(b) all of the representations and warranties of the Seller and
the Servicer under this Agreement shall be materially true and
correct as of the related Closing Date or, with respect to
representations and warranties made as of a date other than
the related Closing Date, as of such date, and no event shall
have occurred which, with notice or the passage of time, would
constitute a material default under this Agreement;
(c) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing
documents, in such forms as are agreed upon and acceptable to
the Purchaser, duly executed by all signatories other than the
Purchaser as required pursuant to the terms hereof;
(d) the Seller and the Servicer shall have delivered and released
to the Purchaser (or its designee) on or prior to the Closing
Date all documents required pursuant to the terms of this
Agreement; and
(e) all other terms and conditions of this Agreement, the related
Purchase Price and Terms Letter and the related Assignment and
Conveyance shall have been materially complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the Closing Date the Purchase Price pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SELLER AND THE SERVICER; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section 3.01 Representations and Warranties of the Seller and the
Servicer.
SunTrust Mortgage, Inc., in its capacity as Seller and Servicer (for
purposes of this Section 3.01 only, the "Company"), represents, warrants and
covenants to the Purchaser that as of each Closing Date or as of such date
specifically provided herein:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has all licenses necessary to carry out its business as now being conducted, and
is licensed and qualified to transact business in and is in good standing under
the laws of each state in which any Mortgaged Property is located or is
otherwise exempt under applicable law from such licensing or qualification or is
otherwise not required under applicable law to effect such licensing or
qualification and no demand for such licensing or qualification has been made
upon the Company by any such state, and in any event the Company is in
compliance with the laws of any such state to the extent necessary to ensure the
enforceability of each Mortgage Loan and the servicing of the Mortgage Loans in
accordance with the terms of this Agreement;
(b) The Company has the full power and authority and legal right to
hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement, the related Purchase Price and Terms Letter and
the related Assignment and Conveyance and to conduct its business as presently
conducted; the Company has duly authorized the execution, delivery and
performance of this Agreement and any agreements contemplated hereby, has duly
executed and delivered this Agreement, the related Purchase Price and Terms
Letter and the related Assignment and Conveyance, and any agreements
contemplated hereby, and this Agreement, the related Purchase Price and Terms
Letter, the related Assignment and Conveyance and each Assignment of Mortgage to
the Purchaser and any agreements contemplated hereby, constitute the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their respective terms , except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization and similar laws,
and by equitable principles affecting the enforceability of the rights of
creditors; and all requisite corporate action has been taken by the Company to
make this Agreement, the related Purchase Price and Terms Letter, the related
Assignment and Conveyance and all agreements contemplated hereby valid and
binding upon the Company in accordance with their terms;
(c) Neither the execution and delivery of this Agreement, the
related Purchase Price and Terms Letter, the related Assignment and Conveyance,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, the related Purchase Price and Terms
Letter or the related Assignment and Conveyance will conflict with any of the
terms, conditions or provisions of the Company's charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the foregoing, or result in
the material violation of any law, rule, regulation, order, judgment or decree
to which the Company or its property is subject;
(d) There is no action, litigation, suit, proceeding or
investigation pending or threatened, or any order or decree outstanding, which
is reasonably likely to have a material adverse effect on the sale of the
Mortgage Loans, the execution, delivery, performance or enforceability of this
Agreement, the related Purchase Price and Terms Letter or the related Assignment
and Conveyance, or which is reasonably likely to have a material adverse effect
on the financial condition of the Company;
(e) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or body, including
HUD, the FHA or the VA, is required for the execution, delivery and performance
by the Company of or compliance by the Company with this Agreement, the related
Purchase Price and Terms Letter and the related Assignment and Conveyance,
except for consents, approvals, authorizations and orders which have been
obtained;
(f) The consummation of the transactions contemplated by this
Agreement, the related Purchase Price and Terms Letter and the related
Assignment and Conveyance are in the ordinary course of business of the Company,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Company pursuant to this Agreement, the related Purchase Price
and Terms Letter and the related Assignment and Conveyance are not subject to
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(g) The origination and servicing practices with respect to each
Mortgage Note and Mortgage have been legal and in accordance with applicable
laws and regulations, and in all material respects proper and prudent in the
mortgage origination and servicing business. With respect to escrow deposits and
payments that the Company is entitled to collect, all such payments are in the
possession of, or under the control of, the Company, and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All escrow payments have been collected
and are being maintained in full compliance with applicable state and federal
law and the provisions of the related Mortgage Note and Mortgage. As to any
Mortgage Loan that is the subject of an escrow, escrow of funds is not
prohibited by applicable law and has been established in an amount sufficient to
pay for every escrowed item that remains unpaid and has been assessed but is not
yet due and payable. No escrow deposits or other charges or payments due under
the Mortgage Note have been capitalized under any Mortgage or the related
Mortgage Note. All Mortgage Interest Rate adjustments have been made in strict
compliance with state and federal law and the terms of the related Mortgage
Note. Any interest required to be paid pursuant to state and local law has been
properly paid and credited;
(h) The Company has not used selection procedures that identified
the Mortgage Loans as being less desirable or valuable than other comparable
mortgage loans in the Company's portfolio at the Cut-off Date;
(i) The Company will treat the sale of the Mortgage Loans to the
Purchaser as a sale for reporting and accounting purposes and, to the extent
appropriate, for federal income tax purposes;
(j) The Company is an approved seller/servicer of residential
mortgage loans for Xxxxxx Mae or Xxxxxxx Mac and HUD, with such facilities,
procedures and personnel necessary for the sound servicing of such mortgage
loans. The Company is duly qualified, licensed, registered and otherwise
authorized under all applicable federal, state and local laws and regulations,
meets the minimum capital requirements, if applicable, set forth by the OCC, and
is in good standing to sell mortgage loans to and service mortgage loans for
Xxxxxx Mae or Xxxxxxx Mac and no event has occurred which would make the Company
unable to comply with eligibility requirements or which would require
notification to either Xxxxxx Mae or Xxxxxxx Mac;
(k) The Company does not believe, nor does it have any cause or
reason to believe, that it cannot perform each and every covenant contained in
this Agreement and the related Purchase Price and Terms Letter. The Company is
solvent and the sale of the Mortgage Loans will not cause the Company to become
insolvent. The sale of the Mortgage Loans is not undertaken with the intent to
hinder, delay or defraud any of the Company's creditors;
(l) No statement, tape, diskette, form, report or other document
prepared by, or on behalf of, the Company pursuant to this Agreement, the
related Purchase Price and Terms Letter or in connection with the transactions
contemplated hereby, contains or will contain any statement that is or will be
inaccurate or misleading in any material respect. The Company has prudently
originated or purchased and underwritten each Mortgage Loan;
(m) The Company acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that the
entire Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(n) The Company has delivered to the Purchaser financial statements
as to its last two complete fiscal years. All such financial statements fairly
present the pertinent results of operations and changes in financial position
for each of such periods and the financial position at the end of each such
period of the Company and its subsidiaries and have been prepared in accordance
with GAAP consistently applied throughout the periods involved, except as set
forth in the notes thereto. There has been no change in the business,
operations, financial condition, properties or assets of the Company since the
date of the Company's financial statements that would have a material adverse
effect on its ability to perform its obligations under this Agreement, the
related Purchase Price and Terms Letter or the related Assignment and
Conveyance;
(o) The Company has not dealt with any broker, investment banker,
agent or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
(p) The Company is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS; and
(q) The consideration received by the Seller upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
Section 3.02 Representations and Warranties as to Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, as to
each Mortgage Loan, as of the related Closing Date as follows:
(I) Non-Agency Representations and Warranties:
(a) The information set forth in the Mortgage Loan Schedule,
including any diskette or other related data tapes sent to the Purchaser, is
complete, true and correct as of the related Cut-off Date;
(b) With respect to a first lien Mortgage Loan that is not a Co-op
Loan, the Mortgage creates a first lien or a first priority ownership interest
in an estate in fee simple in real property securing the related Mortgage Note.
With respect to a first lien Mortgage Loan that is a Co-op Loan, the Mortgage
creates a first lien or a first priority ownership interest in the stock
ownership and leasehold rights associated with the cooperative unit securing the
related Mortgage Note;
(c) With respect to a second lien Mortgage Loan that is not a Co-op
Loan, the Mortgage creates a second lien or a second priority ownership interest
in an estate in fee simple in real property securing the related Mortgage Note.
With respect to a second lien Mortgage Loan that is a Co-op Loan, the Mortgage
creates a second lien or a second priority ownership interest in the stock
ownership and leasehold rights associated with the cooperative unit securing the
related Mortgage Note;
(d) All payments due on or prior to the related Cut-off Date for
such Mortgage Loan have been made as of the related Closing Date, the Mortgage
Loan is not delinquent 30 days or more in payment and has not been dishonored;
there are no defaults under the terms of the Mortgage Loan; the Seller has not
advanced funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by the
Mortgage Loan; as to each first lien Mortgage Loan, there has been no
delinquency of 30 days or more since origination; and as to each second lien
Mortgage Loan, there has been no delinquency of 30 days or more since
origination;
(e) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, or escrow funds have been established in an
amount sufficient to pay for every such escrowed item which remains unpaid and
which has been assessed but is not yet due and payable;
(f) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law, or, necessary to protect the interest of the Purchaser. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, from the terms thereof except
in connection with an assumption agreement and which assumption agreement is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule; the substance of any such waiver, alteration or modification has
been approved by the issuer of any related Primary Mortgage Insurance Policy and
title insurance policy, to the extent required by the related policies;
(g) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including, without limitation,
the defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim or defense has
been asserted with respect thereto; and the Mortgagor was not a debtor in any
state or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was originated;
(h) All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by an insurer acceptable under the Xxxxxx Xxx
Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the Xxxxxx Mae Guides or by Xxxxxxx Mac, as well
as all additional requirements set forth in Section 4.10 of this Agreement. All
such standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Seller and its
successors in interest and assigns as loss payee and such clause is still in
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration which policy conforms to Xxxxxx Mae and Xxxxxxx
Mac requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer acceptable under
Xxxxxx Mae or Xxxxxxx Mac guidelines. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and upon the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(i) Any and all requirements of any federal, state or local law
including, without limitation, predatory or abusive lending, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with and the consummation of the transactions contemplated hereby
will not involve the violation of any such laws, and the Seller shall maintain
in its possession, available for the inspection of the Purchaser or its
designee, and shall deliver to the Purchaser or its designee, upon two Business
Days' request, evidence of compliance with such requirements;
(j) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Seller waived any default
resulting from any action or inaction by the Mortgagor;
(k) With respect to any first lien Mortgage Loan, the related
Mortgage is a valid, subsisting, enforceable and perfected first lien on the
Mortgaged Property and, with respect to any second lien Mortgage Loan, the
related Mortgage is a valid, subsisting, enforceable and perfected second lien
on the Mortgaged Property, including for Mortgage Loans that are not Co-op
Loans, all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems affixed
to such buildings, and all additions, alterations and replacements made at any
time with respect to the foregoing securing the Mortgage Note's original
principal balance. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first or second lien, as applicable, of the Mortgage subject only to
(1) with respect to any second lien Mortgage Loan, the related First Lien, (2)
the lien of non-delinquent current real property taxes and assessments not yet
due and payable, (3) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either (A)
which are referred to or otherwise considered in the appraisal made for the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal, and
(4) other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) with respect to any first lien Mortgage Loan, a
valid, subsisting, enforceable and perfected first lien and first priority
security interest and (2) with respect to any second lien Mortgage Loan, a
valid, subsisting, enforceable and perfected second lien and second priority
security interest, in each case, on the property described therein, and the
Seller has the full right to sell and assign the same to the Purchaser;
(l) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application affecting the rights of creditors and by general equitable
principles and the Seller has taken all action necessary to transfer such rights
of enforceability to the Purchaser. All parties to the Mortgage Note and the
Mortgage had the legal capacity to enter into the Mortgage Loan and to execute
and deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect to a
Mortgage Loan has taken place on the part of Seller or the Mortgagor, or, on the
part of any other party involved in the origination of the Mortgage Loan. The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvements and as to disbursements of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid or are in the process of being paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan and the indebtedness evidenced by the Mortgage Note,
and upon recordation the Purchaser or its designee will be the owner of record
of the Mortgage and the indebtedness evidenced by the Mortgage Note, and upon
the sale of the Mortgage Loan to the Purchaser, the Servicer will retain the
Servicing File in trust for the Purchaser only for the purpose of servicing and
supervising the servicing of the Mortgage Loan. Immediately prior to the
transfer and assignment to the Purchaser on the related Closing Date, the
Mortgage Loan, including the Mortgage Note and the Mortgage, were not subject to
an assignment or pledge, and the Seller had good and marketable title to and was
the sole owner thereof and had full right to transfer and sell the Mortgage Loan
to the Purchaser free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest and has the full right and authority subject
to no interest or participation of, or agreement with, any other party, to sell
and assign the Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear
of any encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing the
Mortgage Loan as set forth in this Agreement;
(n) Each Mortgage Loan that is not a Co-op Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form of
policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title
insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring (subject to
the exceptions contained in (k)(1), (2), (3) and (4) above) the Seller, its
successors and assigns, as to the first or second, as applicable, priority lien
of the Mortgage in the original principal amount of the Mortgage Loan. Where
required by applicable state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance. The
Seller, its successors and assigns, are the sole insureds of such lender's title
insurance policy, such title insurance policy has been duly and validly endorsed
to the Purchaser or the assignment to the Purchaser of the Seller's interest
therein does not require the consent of or notification to the insurer and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement and the related Purchase Price and Terms Letter. No claims have been
made under such lender's title insurance policy, and no prior holder of the
related Mortgage, including the Seller, has done, by act or omission, anything
which would impair the coverage of such lender's title insurance policy;
(o) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the related Mortgage Note and no event which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event permitting
acceleration; and neither the Seller nor any prior mortgagee has waived any
default, breach, violation or event permitting acceleration. With respect to
each second lien Mortgage Loan, (i) the First Lien is in full force and effect,
(ii) there is no default, breach, violation or event of acceleration existing
under such prior mortgage or the related mortgage note, (iii) no event which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the prior mortgage contains a provision which allows
or (B) applicable law requires, the mortgagee under the second lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to cure any
default by payment in full or otherwise under the prior mortgage;
(p) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(q) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that under
law could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to or equal to the lien of the related Mortgage;
(r) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly within
the boundaries and building restriction lines of the Mortgaged Property (and
wholly within the project with respect to a condominium unit) and no
improvements on adjoining properties encroach upon the Mortgaged Property except
those which are insured against by the title insurance policy referred to in
clause (n) above and all improvements on the property comply with all applicable
zoning and subdivision laws and ordinances;
(s) The Mortgage Loan was originated by or for the Seller. The
Mortgage Loan complies with all the terms, conditions and requirements of the
Underwriting Standards. The Mortgage Notes and Mortgages (exclusive of any
riders) are on forms generally acceptable to Xxxxxx Xxx or Xxxxxxx Mac. Seller
is currently selling loans to Xxxxxx Mae and/or Xxxxxxx Mac which are the same
document forms as the Mortgage Notes and Mortgages (inclusive of any riders).
The Mortgage Loan bears interest at the Mortgage Interest Rate set forth in the
Mortgage Loan Schedule, and Monthly Payments under the Mortgage Note are due and
payable on the first day of each month. The Mortgage contains the usual and
enforceable provisions of the originator at the time of origination for the
acceleration of the payment of the unpaid principal amount of the Mortgage Loan
if the related Mortgaged Property is sold without the prior consent of the
mortgagee thereunder;
(t) The Mortgaged Property is not subject to any material damage by
waste, fire, earthquake, windstorm, hurricane, flood, mold or other casualty. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect to the
Mortgaged Property and there are no such proceedings scheduled to commence at a
future date;
(u) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby. There is no homestead or other exemption
available to the Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage
subject to applicable federal and state laws and judicial precedent with respect
to bankruptcy and right of redemption;
(v) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses, except as may be required by local law, are
or will become payable by the Purchaser to the trustee under the deed of trust,
except in connection with a trustee's sale or attempted sale after default by
the Mortgagor;
(w) The Mortgage File contains an appraisal of the related Mortgaged
Property signed prior to the final approval of the mortgage loan application by
a Qualified Appraiser, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of Xxxxxx Mae or Xxxxxxx
Mac and Title XI of FIRREA and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated. The appraisal is in a form
acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(x) All parties which have had any interest in the Mortgage, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) (A) in compliance with any
and all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (B) (1) organized under the laws of such
state, or (2) qualified to do business in such state, or (3) federal savings and
loan associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such state;
(y) The related Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to
above and such collateral does not serve as security for any other obligation;
(z) The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by applicable law with
respect to the making of such mortgage loans;
(aa) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision, such
buydown funds have been maintained and administered in accordance with, and such
Mortgage Loan otherwise complies with, Xxxxxx Mae/Xxxxxxx Mac requirements
relating to buydown loans;
(bb) The Mortgagor is not in bankruptcy or insolvent; and the Seller
has no knowledge of any circumstances or condition with respect to the Mortgage,
the Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that
could reasonably be expected to cause investors to regard the Mortgage Loan as
an unacceptable investment, cause the Mortgage Loan to become delinquent, or
materially adversely affect the value or marketability of the Mortgage Loan;
(cc) Each Mortgage Loan has an original term to maturity of not more
than 30 years, with interest calculated and payable in arrears on the first day
of each month and has in the case of Fixed Rate Mortgage Loans that are not
Interest Only Mortgage Loans equal monthly installments of principal and
interest. Except with respect to Interest Only Mortgage Loans, each Mortgage
Note requires a monthly payment which is sufficient to fully amortize the
original principal balance over the original term thereof and to pay interest at
the related Mortgage Interest Rate; provided, however, in the case of a balloon
Mortgage Loan, the Mortgage Loan matures at least five (5) years after the first
payment date thereby requiring a final payment of the outstanding principal
balance prior to the full amortization of the Mortgage Loan. No Mortgage Loan
contains terms or provisions which would result in negative amortization. The
Monthly Payment on each Interest Only Mortgage Loan during the related
interest-only period is equal to the product of the related Mortgage Interest
Rate and the principal balance of such Mortgage Loan on the first day of each
month and after such interest-only period, except with respect to Interest Only
Mortgage Loans that are Adjustable Rate Mortgage Loans, such Mortgage Loan is
payable in equal monthly installments of principal and interest. No Mortgage
Loan is a Convertible Mortgage Loan;
(dd) Except for Mortgage Loans underwritten in accordance with the
Lender Paid Mortgage Insurance Policy Program, if a Mortgage Loan has an LTV
greater than 80%, the excess of the principal balance of the Mortgage Loan over
75% of the Appraised Value, with respect to a Refinanced Mortgage Loan, or the
lesser of the Appraised Value or the purchase price of the Mortgaged Property,
with respect to a purchase money Mortgage Loan, is and will be insured as to
payment defaults by a Primary Mortgage Insurance Policy issued by a Qualified
Insurer. All provisions of such Primary Mortgage Insurance Policy have been and
are being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. No action, inaction, or event has
occurred and no state of facts exists that has, or will result in the exclusion
from, denial of, or defense to coverage. Any Mortgage Loan subject to a Primary
Mortgage Insurance Policy obligates the Mortgagor thereunder to maintain the
Primary Mortgage Insurance Policy and to pay all premiums and charges in
connection therewith. The mortgage interest rate for the Mortgage Loan as set
forth on the related Mortgage Loan Schedule is net of any such insurance
premium;
(ee) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(ff) As to Mortgage Loans that are not Co-op Loans and that are not
secured by an interest in a leasehold estate, the Mortgaged Property is located
in the state identified in the related Mortgage Loan Schedule and consists of a
single parcel of real property with a detached single family residence erected
thereon, or a townhouse, or a two-to four-family dwelling, or an individual
condominium unit in a condominium project, or an individual unit in a planned
unit development or a de minimis planned unit development, provided, however,
that no residence or dwelling is a single parcel of real property with a
cooperative housing corporation erected thereon, or a mobile home. As of the
date of origination, no portion of the Mortgaged Property was used for
commercial purposes, and since the date of origination no portion of the
Mortgaged Property has been used for commercial purposes;
(gg) Except with respect to Interest Only Mortgage Loans, principal
payments on the Mortgage Loan commenced no more than sixty (60) days after the
funds were disbursed in connection with such Mortgage Loan;
(hh) With respect to each Mortgage Loan that contains a Prepayment
Penalty, such Prepayment Penalty is enforceable and will be enforced by the
Seller, and such Prepayment Penalty is permitted pursuant to federal, state and
local law. No Mortgage Loan will impose a prepayment penalty for a term in
excess of three years from the date such Mortgage Loan was originated. Except as
otherwise set forth on the Mortgage Loan Schedule, with respect to each Mortgage
Loan that contains a Prepayment Penalty, such Prepayment Penalty is at least
equal to the lesser of (A) the maximum amount permitted under applicable law and
(B) six months interest at the related Mortgage Interest Rate on the amount
prepaid in excess of 20% of the original principal balance of such Mortgage
Loan;
(ii) The Mortgaged Property is lawfully occupied under applicable
law, and all inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities. No improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning and
subdivision law, ordinance or regulation;
(jj) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or stock in
a cooperative housing corporation, such condominium, cooperative or planned unit
development project meets the Seller's eligibility requirements as set forth in
Underwriting Standards;
(kk) There is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule or
regulation with respect to the Mortgaged Property; and nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said property;
(ll) The related Mortgagor has not notified the Seller, and the
Seller has no knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers' Civil Relief Act, as amended;
(mm) No Mortgage Loan was made in connection with the construction
or rehabilitation of a Mortgaged Property or facilitating the trade-in of a
Mortgaged Property;
(nn) No action has been taken or failed to be taken by the Seller on
or prior to the Closing Date which has resulted or will result in an exclusion
from, denial of, or defense to coverage under any Primary Mortgage Insurance
Policy (including, without limitation, any exclusions, denials or defenses which
would limit or reduce the availability of the timely payment of the full amount
of the loss otherwise due thereunder to the insured) whether arising out of
actions, representations, errors, omissions, negligence, or fraud of the Seller,
or for any other reason under such coverage;
(oo) Each Mortgage Loan has been serviced in all material respects
in compliance with Accepted Servicing Practices. The origination, servicing and
collection practices used by the Seller and Servicer with respect to each
Mortgage Note and Mortgage, including without limitation the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if any,
since origination have been in all respects legal, proper, prudent and customary
in the mortgage origination and servicing industry. The Mortgage Loan has been
serviced by the Servicer and any predecessor servicer in accordance with all
applicable laws, rules and regulations, the terms of the Mortgage Note and
Mortgage, and the Xxxxxx Xxx and Xxxxxxx Mac servicing guides. With respect to
any Mortgage Loan which provides for an adjustable interest rate, all rate
adjustments have been performed in accordance with the terms of the related
Mortgage Note or subsequent modifications, if any. With respect to escrow
deposits and Escrow Payments (other than with respect to each Mortgage Loan
which is indicated by the Seller to be a Second Lien Mortgage Loan and for which
the mortgagee under the related first lien is collecting Escrow Payments (as
reflected on the Mortgage Loan Schedule)), if any, all such payments are in
possession of, or under the control of, the Servicer and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Seller or Servicer for any work on a Mortgaged
Property which has not been completed;
(pp) With respect to each Co-op Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to (a)
liens of the cooperative for unpaid assessments representing the Mortgagor's pro
rata share of the cooperative's payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Security
Agreement. There are no liens against or security interest in the cooperative
shares relating to each Co-op Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Co-op Loan), which
have priority over the Seller's security interest in such cooperative shares;
(qq) With respect to each Co-op Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to Xxxxxx Xxx and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Co-op Loan;
(rr) With respect to each Co-op Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the Code,
and is in material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect on the
Mortgaged Property;
(ss) With respect to each Co-op Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Co-op Lease;
(tt) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
(uu) With respect to any ground lease to which a Mortgaged Property
may be subject: (i) a true, correct and complete copy of the ground lease and
all amendments, modifications and supplements thereto is included in the
Servicing File, and the Mortgagor is the owner of a valid and subsisting
leasehold interest under such ground lease; (ii) such ground lease is in full
force and effect, unmodified and not supplemented by any writing or otherwise
except as contained in the Mortgage File; (iii) all rent, additional rent and
other charges reserved therein have been fully paid to the extent payable as of
the related Closing Date; (iv) the Mortgagor enjoys the quiet and peaceful
possession of the leasehold estate, subject to any sublease; (v) the Mortgagor
is not in default under any of the terms of such ground lease, and there are no
circumstances which, with the passage of time or the giving of notice, or both,
would result in a default under such ground lease; (vi) the lessor under such
ground lease is not in default under any of the terms or provisions of such
ground lease on the part of the lessor to be observed or performed; (vii) the
lessor under such ground lease has satisfied any repair or construction
obligations due as of the Closing Date pursuant to the terms of such ground
lease; (viii) the execution, delivery and performance of the Mortgage do not
require the consent (other than those consents which have been obtained and are
in full force and effect) under, and will not contravene any provision of or
cause a default under, such ground lease; (ix) the ground lease term extends, or
is automatically renewable, for at least five years beyond the maturity date of
the related Mortgage Loan; and (x) the Purchaser has the right to cure defaults
on the ground lease;
(vv) With respect to any broker fees collected and paid on any of
the Mortgage Loans, all broker fees have been properly assessed to the borrower
and no claims will arise as to broker fees that are double charged and for which
the borrower would be entitled to reimbursement;
(ww) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Purchaser certifying that the original Mortgage Note has
been lost or destroyed and not been replaced, if such Mortgage Loan is
subsequently in default, the enforcement of such Mortgage Loan will not be
materially adversely affected by the absence of the original Mortgage Note;
(xx) Except as provided in Section 2.07, the Mortgage Note, the
Mortgage, the Assignment of Mortgage and the other documents set forth in
Exhibit A-1 and required to be delivered on the related Closing Date have been
delivered to the Purchaser or its designee;
(yy) All information supplied by, on behalf of, or concerning the
Mortgagor is true, accurate and complete and does not contain any statement that
is or will be inaccurate or misleading in any material respect;
(zz) There does not exist on the related Mortgage Property any
hazardous substances, hazardous wastes or solid wastes, as such terms are
defined in the Comprehensive Environmental Response Compensation and Liability
Act, the Resource Conservation and Recovery Act of 1976, or other federal, state
or local environmental legislation;
(aaa) The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by applicable law with
respect to the making of adjustable rate mortgage loans. The Servicer shall
maintain such statement in the Servicing File;
(bbb) No second lien Mortgage Loan has an LTV in excess of 100%. No
second lien Mortgage Loan has an Equity LTV in excess of 100%;
(ccc) Either (a) no consent for the second lien Mortgage Loan is
required by the holder of the related first lien or (b) such consent has been
obtained and is contained in the Mortgage File;
(ddd) With respect to any second lien Mortgage Loan, the Seller has
not received notice of: (1) any proceeding for the total or partial condemnation
of any Mortgaged Property, (2) any subsequent, intervening mortgage, lien,
attachment, lis pendens or other encumbrance affecting any Mortgaged Property or
(3) any default under any mortgage, lien or other encumbrance senior to each
Mortgage;
(eee) Each Mortgagor has a non-zero Credit Score and, except as
otherwise set forth on the Mortgage Loan Schedule, a minimum Credit Score of not
less than 620;
(fff) Except as otherwise set forth on the Mortgage Loan Schedule,
each Mortgagor has a debt to income ratio of 60% or less;
(ggg) With respect to any second lien Mortgage Loan, where required
or customary in the jurisdiction in which the Mortgaged Property is located, the
original lender has filed for record a request for notice of any action by the
senior lienholder under the related First Lien, and the original lender has
notified any senior lienholder in writing of the existence of the second lien
Mortgage Loan and requested notification of any action to be taken against the
Mortgagor by the senior lienholder;
(hhh) No second lien Mortgage Loan is a "home equity line of
credit";
(iii) Except as set forth on the Mortgage Loan Schedule, no first
lien Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than 95%;
(jjj) As of the related Closing Date, the Seller has not received a
notice of default of a First Lien which has not been cured;
(kkk) No First Lien provides for negative amortization;
(lll) None of the Mortgage Loans are classified as a "high cost"
mortgage loan under the Home Ownership and Equity Protection Act of 1994, as
amended, nor is any Mortgage Loan a "high cost home," "threshold," "covered,"
"high risk home" or "predatory" loan (or words of similar import) under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under an applicable law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees);
(mmm) No predatory, abusive or deceptive lending practices,
including but not limited to, the extension of credit to a mortgagor without
regard for the mortgagor's ability to repay the Mortgage Loan and the extension
of credit to a mortgagor which has no apparent benefit to the mortgagor, were
employed in connection with the origination of the Mortgage Loan. Each Mortgage
Loan is in compliance with the anti-predatory lending eligibility requirement of
Xxxxxx Mae's Selling Guide;
(nnn) The Mortgage Loan complies with all applicable consumer credit
statutes and regulations, has been originated by a properly licensed entity, and
in all other respects complies with all of the material requirements of any such
applicable laws;
(ooo) The Mortgage Loan was not prepaid in full prior to the Closing
Date;
(ppp) With respect to any Mortgage Loan which is a Texas Home Equity
Loan, any and all requirements of Section 50, Article XVI of the Texas
Constitution applicable to Texas Home Equity Loans which were in effect at the
time of the origination of the Mortgage Loan have been complied with.
Specifically, without limiting the generality of the foregoing,
(a) all fees paid by the owner of the Mortgaged Property or such
owner's spouse, to any person, that were necessary to
originate, evaluate, maintain, record, insure or service the
Mortgage Loan are reflected in the closing statement for such
Mortgage Loan;
(b) the Mortgage Loan was closed only at the office of the
mortgage lender, an attorney at law, or a title company;
(c) the mortgagee has not been found by a federal regulatory
agency to have engaged in the practice of refusing to make
loans because the applicants for the loans reside or the
property proposed to secure the loans is located in a certain
area;
(d) the owner of the Mortgaged Property was not required to apply
the proceeds of the Mortgage Loan to repay another debt except
debt secured by the Mortgaged Property or debt to a lender
other than the mortgagee;
(e) the owner of the Mortgaged Property did not sign any documents
or instruments relating to the Loan in which blanks were left
to be filled in; and
(f) if discussions between the mortgagee and the Mortgagor were
conducted primarily in a language other than English, the
mortgagee provided to the owner of the Mortgaged Property,
prior to closing, a copy of the notice required by Section
50(g), Article XVI of the Texas Constitution translated into
the written language in which the discussions were conducted.
All notices, acknowledgments and disclosure statements required by
Section 50, Article XVI of the Texas Constitution applicable to Texas Home
Equity Loans are contained in the Mortgage File for each such Mortgage Loan;
(qqq) The Seller has complied with all applicable anti-money
laundering laws and regulations, including without limitation the USA Patriot
Act of 2001 (collectively, the "Anti-Money Laundering Laws"). The Seller has
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws; no Mortgage Loan is subject to nullification pursuant to
Executive Order 13224 (the "Executive Order") or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department of the
Treasury (the "OFAC Regulations") or in violation of the Executive Order of the
OFAC Regulations, and no Mortgagor is subject to the provisions of such
Executive Order or the OFAC Regulations nor listed as a "blocked person" for
purposes of the OFAC Regulations;
(rrr) The sale or transfer of the Mortgage Loan by the Seller
complies with all applicable federal, state, and local laws, rules and
regulations governing such sale or transfer, including without limitation, the
Fair and Accurate Credit Transactions Act ("FACT Act") and the Fair Credit
Reporting Act, each as may be amended from time to time, and the Seller has not
received any actual or constructive notice of any identity theft, fraud, or
other misrepresentation in connection with such Mortgage Loan or any party
thereto;
(sss) With respect to each Mortgage Loan, the Seller shall have
obtained either (i) a transferable real estate tax service contract with a
company reasonably acceptable to the Purchaser or (ii) shall reimburse to the
Purchaser the cost of obtaining such contract;
(ttt) None of the Mortgagors are foreign nationals who enjoy the
benefits of either full or partial diplomatic immunity;
(uuu) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost Loan" and
"Covered Loan" have the meaning assigned to them in the then current Standard &
Poor's LEVELS Version 5.6 Glossary Revised, Appendix E;
(vvv) The Mortgage contains an enforceable provision, to the extent
not prohibited by applicable law as of the date of such Mortgage, for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(www) The source of the down payment with respect to each Mortgage
Loan has been fully verified by the Seller; and
(xxx) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months.
(II) Xxxxxx Xxx Required Representations and Warranties:
(a) Each Mortgage Loan is in compliance with the anti-predatory
lending eligibility for purchase requirements of Xxxxxx Mae's Selling Guide;
(b) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994 ("HOEPA");
(c) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws, including, but
not limited to, all applicable predatory and abusive lending laws;
(d) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Georgia Fair Lending Act, as amended (the "Georgia Act"). No Mortgage Loan
subject to the Georgia Act and secured by owner occupied real property or an
owner occupied manufactured home located in the State of Georgia was originated
(or modified) on or after October 1, 2002 through and including March 6, 2003;
(e) No Mortgage Loan is a "High-Cost Home Loan" as defined in New
York Banking Law 6-1;
(f) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340 of 2003);
(g) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Kentucky high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(h) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.);
(i) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
xx.xx. 58-21A-1 et seq.);
(j) No Mortgage Loan is a "High-Risk Home Loan" as defined in the
Illinois High-Risk Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat.
137/1 et seq.);
(k) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as defined
in the Massachusetts Predatory Home Loan Practices Act, effective November 7,
2004 (Mass. Xxx. Laws Ch. 183C);
(l) No Mortgage Loan is a "High Cost Home Loan" as defined in the
Indiana Home Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx.
Sections 24-9-1 through 24-9-9);
(m) No Mortgage Loan is a balloon mortgage loan that has an original
stated maturity of less than seven (7) years;
(n) No Mortgage Loan that was originated on or after October 31,
2004, is subject to mandatory arbitration;
(o) No borrower was encouraged or required to select a Mortgage Loan
product offered by the Mortgage Loan's originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Mortgage
Loan's origination, such borrower did not qualify taking into account credit
history and debt-to-income ratios for a lower-cost credit product then offered
by the Mortgage Loan's originator or any affiliate of the Mortgage Loan's
originator. If, at the time of loan application, the borrower may have qualified
for a lower-cost credit product then offered by any mortgage lending affiliate
of the Mortgage Loan's originator, the Mortgage Loan's originator referred the
borrower's application to such affiliate for underwriting consideration;
(p) The methodology used in underwriting the extension of credit for
each Mortgage Loan employs objective mathematical principles which relate the
borrower's income, assets and liabilities to the proposed payment and such
underwriting methodology does not rely on the extent of the borrower's equity in
the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the borrower had a reasonable ability to make
timely payments on the Mortgage Loan;
(q) With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (i)
prior to the loan's origination, the borrower agreed to such premium in exchange
for a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium, (iii)
the prepayment premium is disclosed to the borrower in the loan documents
pursuant to applicable state and federal law, (iv) for loans originated on or
after September 1, 2004, the duration of the prepayment period shall not exceed
three (3) years from the date of the note, unless the loan was modified to
reduce the prepayment period to no more than three (3) years from the date of
the note and the borrower was notified in writing of such reduction in
prepayment period, and (v) notwithstanding any state or federal law to the
contrary, the Servicer shall not impose such prepayment premium in any instance
when the mortgage debt is accelerated as the result of the borrower's default in
making the loan payments;
(r) No borrower was required to purchase any single premium credit
insurance policy (e.g., life, mortgage, disability, accident, unemployment, or
health insurance product) or debt cancellation agreement as a condition of
obtaining the extension of credit. No borrower obtained a prepaid single-premium
credit insurance policy (e.g., life, mortgage, disability, accident,
unemployment, or health insurance product) or debt cancellation agreement in
connection with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan;
(s) All points and fees related to each Mortgage Loan were disclosed
in writing to the borrower in accordance with applicable state and federal law
and regulation. Except in the case of a Mortgage Loan in an original principal
amount of less than $60,000 which would have resulted in an unprofitable
origination, no borrower was charged "points and fees" (whether or not financed)
in an amount greater than 5% of the principal amount of such loan, such 5%
limitation is calculated in accordance with Xxxxxx Mae's anti-predatory lending
requirements as set forth in the Xxxxxx Xxx Selling Guide;
(t) All fees and charges (including finance charges) and whether or
not financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan has been disclosed in writing to
the borrower in accordance with applicable state and federal law and regulation;
and
(u) The Seller, in its capacity as Servicer, will transmit full-file
credit reporting data for each Mortgage Loan pursuant to Xxxxxx Mae Guide
Announcement 95-19 and that for each Mortgage Loan, the Seller, in its capacity
as Servicer, agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off.
(III) Xxxxxxx Mac Required Representations and Warranties:
(a) HOEPA: No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA");
(b) Mortgage Premises Located in Georgia: There is no Mortgage Loan
that was originated on or after October 1, 2002 and before March 7, 2003, which
is secured by property located in the State of Georgia;
(c) Mortgage Premises Located in Georgia: There is no Mortgage Loan
that was originated on or after March 7, 2003, which is a "high cost home loan"
as defined under the Georgia Fair Lending Act;
(d) No High Cost Loans: No Mortgage Loan is a "high cost home,"
"covered" (excluding home loans defined as "covered home loans" in the New
Jersey Home Ownership Security Act of 2002 that were originated between November
26, 2003 and July 7, 2004), "high risk home" or "predatory" loan under any
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees);
(e) Credit Insurance: With respect to each Mortgage Loan, no
borrower obtained a prepaid single-premium credit-life, credit disability,
credit unemployment or credit property insurance policy in connection with the
origination of the mortgage loan;
(f) Prepayment Penalties: No subprime mortgage loan originated on or
after October 1, 2002 will impose a prepayment premium for a term in excess of
three years. Any loans originated prior to such date, and any non-subprime
loans, will not impose prepayment penalties in excess of five years;
(g) Credit Reporting (past practice): The Seller, in its capacity as
Servicer, has fully furnished, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian,
and Trans Union Credit Information Company (three of the credit repositories),
on a monthly basis;
(h) Credit Reporting (future covenant): The Seller, in its capacity
as Servicer, will fully furnish, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian,
and Trans Union Credit Information Company (three of the credit repositories),
on a monthly basis;
(i) Qualified Mortgage for REMIC: Each Mortgage Loan is a "qualified
mortgage" under Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2(a)(1); and
(j) No Arbitration Provision: With respect to any Mortgage Loan
originated on or after August 1, 2004, neither the related Mortgage nor the
related Mortgage Note requires the borrower to submit to arbitration to resolve
any dispute arising out of or relating in any way to the mortgage loan
transaction.
Section 3.03 Repurchase; Substitution.
It is understood and agreed that the representations and warranties
set forth in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans
and delivery of the Mortgage File to the Purchaser, or its designee, and shall
inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment or the examination, or
lack of examination, of any Mortgage Loan Document. Upon discovery by the
Seller, the Servicer or the Purchaser of a breach of any of the foregoing
representations and warranties which materially and adversely affects the value
of the Mortgage Loans or the interest of the Purchaser in any Mortgage Loan, the
party discovering such breach shall give prompt written notice to the others.
With respect to the representations and warranties which are made to the best of
the Seller's knowledge, if it is discovered by the Seller, the Servicer or the
Purchaser that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interests of the Purchaser therein, notwithstanding such
Seller's lack of knowledge with respect to the substance of such representation
or warranty, such inaccuracy shall be deemed a breach of the applicable
representation or warranty. The Seller shall have a period of sixty (60) days
from the earlier of its discovery or its receipt of notice of any such breach
within which to correct or cure such breach. The Seller hereby covenants and
agrees that if any such breach is not corrected or cured within such sixty (60)
day period, the Seller shall, at the Purchaser's option and not later than the
next Determination Date either repurchase such Mortgage Loan at the Repurchase
Price or substitute a mortgage loan for the Defective Mortgage Loan as provided
below. In the event that any such breach shall involve any representation or
warranty set forth in Section 3.01, and such breach is not cured within sixty
days of the earlier of either discovery by or notice to the Seller of such
breach, all Mortgage Loans shall, at the option of the Purchaser, be repurchased
by the Seller at the Repurchase Price. Any such repurchase shall be accomplished
by deposit in the Custodial Account of the amount of the Repurchase Price.
Notwithstanding anything to the contrary herein, within sixty (60) days of the
earlier of either discovery by or notice to the Seller of any breach of the
representations or warranties set forth in Section 3.02(II) or Section 3.02(III)
of this Agreement, the Seller shall repurchase from the Purchaser such Mortgage
Loan at the Repurchase Price.
If pursuant to the foregoing provisions the Seller repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Servicer shall either (i) cause
MERS to execute and deliver an assignment of the Mortgage in recordable form to
transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to
be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations or (ii) cause MERS to designate on the MERS(R) System the
Seller as the beneficial holder of such Mortgage Loan.
If the Seller is required to repurchase any Mortgage Loan pursuant
to this Section 3.03 as a result of a breach of any of the representations and
warranties set forth in Section 3.02, the Seller may, with the Purchaser's prior
consent, which consent shall not be unreasonably withheld, within two (2) years
from the related Closing Date, remove such defective Mortgage Loan from the
terms of this Agreement and substitute another mortgage loan for such defective
Mortgage Loan, in lieu of repurchasing such defective Mortgage Loan. Any
substitute Mortgage Loan shall (a) have a principal balance at the time of
substitution not in excess of the principal balance of the defective Mortgage
Loan (the amount of any difference, plus one month's interest thereon at the
Mortgage Interest Rate borne by the defective Mortgage Loan, being paid by the
Seller and deemed to be a Principal Prepayment to be deposited by the Seller in
the Custodial Account), (b) have a Mortgage Interest Rate not less than, and not
more than one percentage point greater than, the Mortgage Interest Rate of the
removed Mortgage Loan, (c) have a remaining term to stated maturity not later
than, and not more than one year less than, the remaining term to stated
maturity of the removed Mortgage Loan, (d) be, in the reasonable determination
of the Purchaser, of the same type, quality and character (including location of
the Mortgaged Property) as the removed Mortgage Loan as if the breach had not
occurred, (e) have a Loan-to-Value Ratio at origination no greater than that of
the removed Mortgage Loan, (f) with respect to any second lien Mortgage Loan,
have an Equity Loan-to-Value Ratio at origination no greater than that of the
removed Mortgage Loan, (g) have the same lien priority as that of the removed
Mortgage Loan and (h) be, in the reasonable determination of the Purchaser, in
material compliance with the representations and warranties contained in this
Agreement and described in Section 3.02 as of the date of substitution.
The Seller shall amend the related Mortgage Loan Schedule to reflect
the withdrawal of the removed Mortgage Loan from this Agreement and the
substitution of such substitute Mortgage Loan therefor. Upon such amendment, the
Purchaser shall review the Mortgage File delivered to it relating to the
substitute Mortgage Loan. The Monthly Payment on a substitute Mortgage Loan due
on the Due Date in the month of substitution shall be the property of the Seller
and the Monthly Payment on the Defective Mortgage Loan for which the
substitution is made due on the such date shall be the property of the
Purchaser.
It is understood and agreed that the obligation of the Seller set
forth in this Section 3.03 to cure, repurchase or substitute for a defective
Mortgage Loan, and to indemnify Purchaser pursuant to Section 7.01, constitutes
the sole remedies of the Purchaser respecting a breach of the foregoing
representations and warranties. If the Seller fails to repurchase or substitute
for a defective Mortgage Loan in accordance with this Section 3.03, or fails to
cure a defective Mortgage Loan to Purchaser's reasonable satisfaction in
accordance with this Section 3.03, or to indemnify Purchaser pursuant to Section
7.01, that failure shall, upon compliance by the Purchaser with the next to the
last paragraph of this Section 3.03, be an Event of Default and the Purchaser
shall be entitled to pursue all available remedies. No provision of this
paragraph shall affect the rights of the Purchaser to terminate this Agreement
for cause, as set forth in Sections 8.01 and 9.01.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Sections 3.01 and 3.02
shall accrue as to any Mortgage Loan upon (i) the earlier of discovery of such
breach by the Seller or notice thereof by the Purchaser to the Seller, (ii)
failure by the Seller to cure such breach or repurchase such Mortgage Loan as
specified above, and (iii) demand upon the Seller by the Purchaser for
compliance with this Agreement.
In the event that any Mortgage Loan is held by a REMIC,
notwithstanding any contrary provision of this Agreement, with respect to any
Mortgage Loan that is not in default or as to which no default is imminent,
Purchaser may, in connection with any repurchase or substitution of a Defective
Mortgage Loan pursuant to this Section 3.03, require that the Seller deliver, at
the Seller's expense, an Opinion of Counsel to the effect that such repurchase
or substitution will not (i) result in the imposition of taxes on "prohibited
transactions" of such REMIC (as defined in Section 860F of the Code) or
otherwise subject the REMIC to tax, or (ii) cause the REMIC to fail to qualify
as a REMIC at any time.
Section 3.04 Repurchase of Convertible Mortgage Loans.
In the event the Mortgagor under any Convertible Mortgage Loan
elects to convert said Mortgage Note to a fixed interest rate Mortgage Note, as
provided in said Mortgage Note, then the Seller shall, prior to the effective
date of said conversion, repurchase such Convertible Mortgage Loan from the
Purchaser in accordance with Section 3.03 hereof.
Section 3.05 Repurchase of Mortgage Loans With Early Payment
Defaults.
If a Mortgagor is thirty (30) days or more delinquent with respect
to any of the first two (2) Monthly Payments due to the Purchaser on the related
Mortgage Loan immediately following the related Closing Date, the Seller, at the
Purchaser's option, shall promptly repurchase such Mortgage Loan from the
Purchaser within five (5) Business Days' of receipt of written notice from the
Purchaser, in accordance with the procedures set forth in Section 3.03 hereof,
however, any such repurchase shall be made at the Repurchase Price.
Section 3.06 Purchase Price Protection.
With respect to any first lien Mortgage Loan that prepays in full
during the three (3) month period from and after the related Closing Date, the
Seller shall reimburse the Purchaser an amount equal to (a) the amount, if any,
by which the Purchase Price paid by the Purchaser to the Seller exceeded 100% of
the outstanding scheduled principal balance of the Mortgage Loan as of the
related Cut-off Date minus (b) the amount of any Prepayment Penalty to the
extent such Prepayment Penalty is (i) legally enforceable and (ii) collected and
remitted to the Purchaser, in each case, with respect to such Mortgage Loan,
within thirty (30) days of notice of such prepayment in full; provided that the
Purchaser notifies the Seller of such prepayment in full within 120 days of
Purchaser's knowledge of such prepayment. With respect to any second lien
Mortgage Loan that prepays in full during the twelve (12) month period from and
after the Closing Date, the Seller shall reimburse the Purchaser an amount equal
to (a) the amount, if any, by which the Purchase Price paid by the Purchaser to
the Seller exceeded 100% of the outstanding scheduled principal balance of the
Mortgage Loan as of the Cut-off Date times (b) a fraction, the numerator of
which is equal to the number of months remaining from the date of prepayment in
full until one year from the related Closing Date and the denominator of which
is twelve (12) minus (c) the amount of any Prepayment Penalty to the extent such
Prepayment Penalty is (i) legally enforceable and (ii) collected and remitted to
the Purchaser, in each case, with respect to such Mortgage Loan, within thirty
(30) days of such prepayment in full. Upon any assignment of a Mortgage Loan
and/or this Agreement, the Purchaser may at its option retain its rights under
this Section 3.06 notwithstanding such assignment.
Section 3.07 Acknowledgement of Anti-Predatory Lending Policies.
As of the applicable Closing Date, the Purchaser has in place
internal policies and procedures that expressly prohibit its purchase of any
Mortgage Loan classified as (a) a "high cost" loan under the Home Ownership and
Equity Protection Act of 1994 or (b) a "high cost home," "threshold," "covered,"
"high risk home" or "predatory" loan under any other applicable state, federal
or local law (or a similarly classified loan using different terminology under a
law, regulation or ordinance imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
ARTICLE IV
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 4.01 The Servicer to Act as Servicer.
The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans in accordance with this Agreement and with
Accepted Servicing Practices, and shall have full power and authority, acting
alone, to do or cause to be done any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement and with Accepted Servicing
Practices. The Servicer shall service and administer the Mortgage Loans through
the exercise of the same care that it customarily employs for its own account.
Except as set forth in this Agreement, the Servicer shall service the Mortgage
Loans in strict compliance with the servicing provisions of the Xxxxxx Xxx
Guides (special servicing option), which include, but are not limited to,
provisions regarding the liquidation of Mortgage Loans, the collection of
Mortgage Loan payments, the payment of taxes, insurance and other charges, the
maintenance of hazard insurance with a Qualified Insurer, the maintenance of
mortgage impairment insurance, the maintenance of fidelity bond and errors and
omissions insurance, inspections, the restoration of Mortgaged Property, the
maintenance of Primary Mortgage Insurance Policies, insurance claims, the title,
management of REO Property, permitted withdrawals with respect to REO Property,
liquidation reports, and reports of foreclosures and abandonments of Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage Files,
annual statements, and examination of records and facilities. In the event of
any conflict, inconsistency or discrepancy between any of the servicing
provisions of this Agreement and any of the servicing provisions of the Xxxxxx
Mae Guides, the provisions of this Agreement shall control and be binding upon
the Purchaser and the Servicer.
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
any such term or in any manner grant indulgence to any Mortgagor if in the
Servicer's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that unless the Servicer has obtained the prior written consent of the
Purchaser, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, forgive the payment
of principal or interest, reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final maturity date on
such Mortgage Loan. In the event of any such modification which has been agreed
to in writing by the Purchaser and which permits the deferral of interest or
principal payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 4.04, the difference
between (a) the otherwise scheduled Monthly Payment and (b) the amount paid by
the Mortgagor. The Servicer shall be entitled to reimbursement for such advances
to the same extent as for all other advances pursuant to Section 4.05. Without
limiting the generality of the foregoing, the Servicer shall continue, and is
hereby authorized and empowered, to prepare, execute and deliver, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. Notwithstanding anything
herein to the contrary, the Servicer may not enter into a forbearance agreement
or similar arrangement with respect to any Mortgage Loan which runs more than
180 days after the first delinquent Due Date. Any such agreement shall be
approved by any applicable holder of a Primary Mortgage Insurance Policy, if
required.
The Servicer is authorized and empowered by the Purchaser, in its
own name, when the Servicer believes it appropriate in its reasonable judgment
to register any Mortgage Loan on the MERS(R) System, or cause the removal from
the registration of any Mortgage Loan on the MERS(R) System, to execute and
deliver, on behalf of the Purchaser, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Purchaser and its
successors and assigns.
Unless a different time period is stated in this Agreement, the
Purchaser shall be deemed to have given consent in connection with a particular
matter if the Purchaser does not affirmatively grant or deny consent within five
(5) Business Days from the date the Purchaser receives a second written request
for consent for such matter from the Servicer.
The Servicer shall accurately and fully report its borrower credit
files related to the Mortgage Loans to Equifax, Transunion and Experian in a
timely manner.
Section 4.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the date each Mortgage Loan
ceases to be serviced subject to this Agreement, the Servicer will proceed
diligently to collect all payments due under each Mortgage Loan when the same
shall become due and payable and shall, to the extent such procedures shall be
consistent with this Agreement, Accepted Servicing Practices, and the terms and
provisions of related Primary Mortgage Insurance Policy or LPMI Policy, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Servicer will take special care in ascertaining and estimating annual escrow
payments, and all other charges that, as provided in the Mortgage, will become
due and payable, so that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Section 4.03 Realization Upon Defaulted Mortgage Loans.
The Servicer shall use its best efforts, consistent with the
procedures that the Servicer would use in servicing loans for its own account,
consistent with Accepted Servicing Practices, any Primary Mortgage Insurance or
LPMI Policies and the best interest of Purchaser, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 4.01. Foreclosure or comparable proceedings shall be initiated within
one hundred twenty (120) days of default for Mortgaged Properties for which no
satisfactory arrangements can be made for collection of delinquent payments. The
Servicer shall use its best efforts to realize upon defaulted Mortgage Loans in
such manner as will maximize the receipt of principal and interest by the
Purchaser, taking into account, among other things, the timing of foreclosure
proceedings. The foregoing is subject to the provisions that, in any case in
which the Mortgaged Property shall have suffered damage, the Servicer shall not
be required to expend its own funds toward the restoration of such property
unless it shall determine in its discretion (i) that such restoration will
increase the proceeds of liquidation of the related Mortgage Loan to the
Purchaser after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 4.05. The Servicer shall obtain prior approval of Purchaser as to
restoration expenses in excess of one thousand dollars ($1,000). The Servicer
shall notify the Purchaser in writing of the commencement of foreclosure
proceedings and prior to the acceptance or rejection of any offer of
reinstatement. The Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings or functions; provided, however, that it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 4.05. Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Purchaser otherwise requests an environmental inspection or review of
such Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector at the Purchaser's expense. Upon completion of the
inspection, the Servicer shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Servicer shall proceed
with respect to the Mortgaged Property.
In the event that a Mortgage Loan becomes part of a REMIC, and
becomes REO Property, such property shall be disposed of by the Servicer, with
the consent of the Purchaser as required pursuant to this Agreement, within
three (3) years after becoming an REO Property, unless the Servicer provides to
the trustee under such REMIC an opinion of counsel to the effect that the
holding of such REO Property subsequent to three years after its becoming REO
Property, will not result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code, or cause the transaction
to fail to qualify as a REMIC at any time that certificates are outstanding. The
Servicer shall manage, conserve, protect and operate each such REO Property for
the certificateholders solely for the purpose of its prompt disposition and sale
in a manner which does not cause such property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code, or
any "net income from foreclosure property" which is subject to taxation under
the REMIC provisions of the Code. Pursuant to its efforts to sell such property,
the Servicer shall either itself or through an agent selected by the Servicer,
protect and conserve such property in the same manner and to such an extent as
is customary in the locality where such property is located. Additionally, the
Servicer shall perform the tax withholding and reporting related to Sections
1445 and 6050J of the Code.
Section 4.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
The Seller shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts.
Each Custodial Account shall be an Eligible Account. Funds deposited in a
Custodial Account may be drawn on in accordance with Section 4.05. The creation
of any Custodial Account shall be evidenced by a letter agreement in the form
shown in Exhibit B hereto. The original of such letter agreement shall be
furnished to the Purchaser on the Closing Date, and upon the request of any
subsequent purchaser.
The Seller shall deposit in the Custodial Account on a daily basis,
and retain therein the following payments and collections received or made by it
subsequent to the Cut-off Date, or received by it prior to the Cut-off Date but
allocable to a period subsequent thereto, other than in respect of principal and
interest on the Mortgage Loans due on or before the Cut-off Date:
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans adjusted to the Mortgage Interest Rate;
(iii) all Liquidation Proceeds;
(iv) any amounts required to be deposited by the
Servicer in connection with any REO Property pursuant to Section
4.13;
(v) all Insurance Proceeds including amounts required to
be deposited pursuant to Sections 4.08, 4.10 and 4.11, other than
proceeds to be held in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Accepted Servicing Practices, the loan
documents or applicable law;
(vi) all Condemnation Proceeds affecting any Mortgaged
Property which are not released to the Mortgagor in accordance with
the Seller's normal servicing procedures, the loan documents or
applicable law;
(vii) any Monthly Advances;
(viii) all proceeds of any Mortgage Loan repurchased in
accordance with Sections 3.03, 3.04 and 3.05;
(ix) any amounts required to be deposited by the
Servicer pursuant to Section 4.11 in connection with the deductible
clause in any blanket hazard insurance policy, such deposit shall be
made from the Servicer's own funds, without reimbursement therefor;
and
(x) any amounts required to be deposited in the
Custodial Account pursuant to Section 4.01 or Section 6.02.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges and
assumption fees, to the extent permitted by Section 6.01, need not be deposited
by the Seller in the Custodial Account. Any interest paid on funds deposited in
the Custodial Account by the depository institution shall accrue to the benefit
of the Servicer and the Servicer shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05(iv).
Section 4.05 Permitted Withdrawals From the Custodial Account.
The Servicer may, from time to time, withdraw from the Custodial
Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and
in the manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances, the
Servicer's right to reimburse itself pursuant to this subclause (ii)
being limited to amounts received on the related Mortgage Loan which
represent late collections (net of the related Servicing Fee) of
principal and/or interest respecting which any such advance was
made, it being understood that, in the case of such reimbursement,
the Servicer's right thereto shall be prior to the rights of the
Purchaser, except that, where the Servicer is required to repurchase
a Mortgage Loan, pursuant to Section 3.03, 3.04 or 3.05, the
Servicer's right to such reimbursement shall be subsequent to the
payment to the Purchaser of the Repurchase Price pursuant to such
Section and all other amounts required to be paid to the Purchaser
with respect to such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing
Advances and any unpaid Servicing Fees, the Servicer's right to
reimburse itself pursuant to this subclause (iii) with respect to
any Mortgage Loan being limited to related proceeds from Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds;
(iv) to pay to itself as part of its servicing
compensation: (a) any interest earned on funds in the Custodial
Account (all such interest to be withdrawn monthly not later than
each Remittance Date), and (b) the Servicing Fee from that portion
of any payment or recovery as to interest with respect to a
particular Mortgage Loan;
(v) to pay to itself with respect to each Mortgage Loan
that has been repurchased pursuant to Section 3.03, 3.04 or 3.05 all
amounts received thereon and not distributed as of the date on which
the related Repurchase Price is determined;
(vi) to reimburse itself for unreimbursed Monthly
Advances and Servicing Advances to the extent not fully reimbursed
pursuant to Section 4.05(ii) or (iii) above;
(vii) to transfer funds to another Eligible Account in
accordance with Section 4.09 hereof;
(viii) to make payments in respect of the premiums due,
if any, on the LPMI Policies, if applicable;
(ix) to remove funds inadvertently placed in the
Custodial Account by the Servicer; and
(x) to clear and terminate the Custodial Account upon
the termination of this Agreement.
Section 4.06 Establishment of Escrow Accounts; Deposits in Accounts.
The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts. Each Escrow Account shall be
an Eligible Account. Funds deposited in the Escrow Account may be drawn on by
the Servicer in accordance with Section 4.07. The creation of any Escrow Account
shall be evidenced by a letter agreement in the form shown in Exhibit C. The
original of such letter agreement shall be furnished to the Purchaser on the
Closing Date, and upon request to any subsequent purchaser.
The Servicer shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the
Mortgage Loans, for the purpose of effecting timely payment of any
such items as required under the terms of this Agreement;
(ii) all Insurance Proceeds which are to be applied to
the restoration or repair of any Mortgaged Property; and
(iii) all Servicing Advances for Mortgagors whose Escrow
Payments are insufficient to cover escrow disbursements.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, and for such other
purposes as shall be as set forth or in accordance with Section 4.07. The
Servicer shall be entitled to retain any interest paid on funds deposited in an
Escrow Account by the depository institution other than interest on escrowed
funds required by law to be paid to the Mortgagor and, to the extent required by
law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that such Escrow Account is non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section 4.07 Permitted Withdrawals From the Escrow Account.
Withdrawals from the Escrow Account may be made by the Servicer
only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, Primary Mortgage Insurance Policy
premiums, if applicable, fire and hazard insurance premiums,
condominium assessments and comparable items for the related
Mortgage;
(ii) to reimburse the Servicer for any Servicing Advance
made by the Servicer with respect to a related Mortgage Loan but
only from amounts received on the related Mortgage Loan which
represent late payments or collections of Escrow Payments
thereunder;
(iii) to refund to the Mortgagor any funds as may be
determined to be overages;
(iv) for transfer to the Custodial Account in accordance
with the terms of this Agreement;
(v) for application to restoration or repair of the
Mortgaged Property;
(vi) to pay to the Servicer, or to the Mortgagor to the
extent required by law, any interest paid on the funds deposited in
the Escrow Account;
(vii) to clear and terminate the Escrow Account on the
termination of this Agreement;
(viii) to pay to the Mortgagors or other parties
Insurance Proceeds deposited in accordance with Section 4.06; and
(ix) to remove funds inadvertently placed in the Escrow
Account by the Servicer.
Section 4.08 Payment of Taxes, Insurance and Charges; Maintenance of
Primary Mortgage Insurance or LPMI Policies; Collections Thereunder.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of primary mortgage insurance premiums and fire and
hazard insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage or applicable law. To the extent that
the Mortgage does not provide for Escrow Payments, the Servicer shall determine
that any such payments are made by the Mortgagor at the time they first become
due. The Servicer assumes full responsibility for the timely payment of all such
bills and shall effect timely payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments.
The Servicer will maintain in full force and effect Primary Mortgage
Insurance Policies issued by a Qualified Insurer with respect to each first lien
Mortgage Loan for which such coverage is herein required. Such coverage will be
maintained until the Loan-to-Value ratio of the related Mortgage Loan is reduced
to 80% or less in the case of a first lien Mortgage Loan having a Loan-to-Value
Ratio at origination in excess of 80% or as required by state or federal law.
The Servicer will not cancel or refuse to renew any Primary Mortgage Insurance
Policy in effect on the related Closing Date that is required to be kept in
force under this Agreement unless a replacement Primary Mortgage Insurance
Policy for such canceled or non-renewed policy is obtained from and maintained
with a Qualified Insurer. The Servicer shall not take any action which would
result in non-coverage under any applicable Primary Mortgage Insurance Policy of
any loss which, but for the actions of the Servicer would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into pursuant to Section 6.01, the Servicer shall promptly
notify the insurer under the related Primary Mortgage Insurance Policy, if any,
of such assumption or substitution of liability in accordance with the terms of
such policy and shall take all actions which may be required by such insurer as
a condition to the continuation of coverage under the Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Mortgage Insurance Policy or LPMI Policy in a timely
fashion in accordance with the terms of such Primary Mortgage Insurance Policy
or LPMI Policy and, in this regard, to take such action as shall be necessary to
permit recovery under any Primary Mortgage Insurance Policy or LPMI Policy
respecting a defaulted first lien Mortgage Loan. Pursuant to Section 4.04, any
amounts collected by the Servicer under any Primary Mortgage Insurance Policy or
LPMI Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section 4.09 Transfer of Accounts.
The Servicer may transfer a Custodial Account or an Escrow Account
to a different Eligible Account from time to time. Such transfer shall be made
only upon obtaining the prior written consent of the Purchaser, which consent
will not be unreasonably withheld.
Section 4.10 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan
fire and hazard insurance with extended coverage as is acceptable to Xxxxxx Xxx
and Xxxxxxx Mac and customary in the area where the Mortgaged Property is
located in an amount which is equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan and (ii) the greater of
(a) the outstanding principal balance of the Mortgage Loan, and (b) an amount
such that the proceeds thereof shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer. If required by the Flood
Disaster Protection Act of 1973, as amended, each Mortgage Loan shall be covered
by a flood insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration in effect with an insurance carrier
acceptable to Xxxxxx Mae and/or Xxxxxxx Mac, in an amount representing coverage
not less than the least of (i) the outstanding principal balance of the Mortgage
Loan, (ii) the maximum insurable value of the improvements securing such
Mortgage Loan and (iii) the maximum amount of insurance which is available under
the Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law and pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located
in a special flood hazard area and is not covered by flood insurance or is
covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Servicer shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage, and if
said Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor's behalf. The Servicer
shall also maintain on each REO Property, fire and hazard insurance with
extended coverage in an amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in an amount as provided above. Any amounts collected
by the Servicer under any such policies other than amounts to be deposited in
the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance with
Accepted Servicing Practices, shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 4.05. It is understood and agreed that
no other additional insurance need be required by the Servicer or maintained on
property acquired in respect of the Mortgage Loan, other than pursuant to this
Agreement, the Xxxxxx Mae Guides or such applicable state or federal laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to the Servicer and its successors and/or
assigns and shall provide for at least thirty (30) days prior written notice of
any cancellation, reduction in the amount or material change in coverage to the
Servicer. The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies are Qualified Insurers.
Section 4.11 Maintenance of Mortgage Impairment Insurance Policy.
In the event that the Servicer shall obtain and maintain a blanket
policy issued by an issuer acceptable to Xxxxxx Xxx and/or Xxxxxxx Mac insuring
against hazard losses on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the amount required pursuant to
Section 4.10 and otherwise complies with all other requirements of Section 4.10,
it shall conclusively be deemed to have satisfied its obligations as set forth
in Section 4.10, it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO Property
a policy complying with Section 4.10, and there shall have been a loss which
would have been covered by such policy, deposit in the Custodial Account the
amount not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of the Purchaser, claims under
any such blanket policy in a timely fashion in accordance with the terms of such
policy. Upon request of the Purchaser, the Servicer shall cause to be delivered
to the Purchaser a certified true copy of such policy and shall use its best
efforts to obtain a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without thirty (30) days' prior
written notice to the Purchaser.
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in any
capacity with regard to the Mortgage Loans to handle funds, money, documents and
papers relating to the Mortgage Loans. The Fidelity Bond shall be in the form of
a mortgage banker's blanket bond and shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement and fraud of such
persons. The errors and omissions insurance shall protect and insure the
Servicer against losses arising out of errors and omissions and negligent acts
of such persons. Such errors and omissions insurance shall also protect and
insure the Servicer against losses in connection with the failure to maintain
any insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 4.12 requiring the
Fidelity Bond or errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by Xxxxxx Xxx in the Xxxxxx Mae
Guides or by Xxxxxxx Mac in the Xxxxxxx Mac Guides. The Servicer shall deliver
to the Purchaser a certificate from the surety and the insurer as to the
existence of the Fidelity Bond and errors and omissions insurance policy and
shall obtain a statement from the surety and the insurer that such Fidelity Bond
or insurance policy shall in no event be terminated or materially modified
without thirty (30) days' prior written notice to the Purchaser. The Seller
shall notify the Purchaser within five (5) business days of receipt of notice
that such Fidelity Bond or insurance policy will be, or has been, materially
modified or terminated. The Purchaser (or any party having the status of
Purchaser hereunder) and any subsidiary thereof and their successors or assigns
as their interests may appear must be named as loss payees on the Fidelity Bond
and as additional insured on the errors and omissions policy. Upon request by
the Purchaser, the Servicer shall provide the Purchaser with an insurance
certificate certifying coverage under this Section 4.12, and will provide an
update to such certificate upon request, or upon renewal or material
modification of coverage.
Section 4.13 Title, Management and Disposition of REO Property.
In the event that title to the Mortgaged Property is acquired in
foreclosure, by deed in lieu of foreclosure or other method resulting in full or
partial satisfaction of the related Mortgage, the deed or certificate of sale
shall be taken in the name of the Purchaser or its designee, or in the event the
Purchaser or its designee is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an opinion of counsel obtained by the
Servicer from an attorney duly licensed to practice law in the state where the
REO Property is located. Any Person or Persons holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
The Servicer shall notify the Purchaser in accordance with the
Xxxxxx Xxx Guides of each acquisition of REO Property upon such acquisition,
together with a copy of the drive by appraisal or brokers price opinion of the
Mortgaged Property obtained in connection with such acquisition, and thereafter
assume the responsibility for marketing such REO Property in accordance with
Accepted Servicing Practices. Thereafter, the Servicer shall continue to provide
certain administrative services to the Purchaser relating to such REO Property
as set forth in this Section 4.13.
The Servicer shall, either itself or through an agent selected by
the Servicer, and in accordance with the Xxxxxx Mae Guides manage, conserve,
protect and operate each REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account,
and in the same manner that similar property in the same locality as the REO
Property is managed. The Servicer shall cause each REO Property to be inspected
promptly upon the acquisition of title thereto and shall cause each REO Property
to be inspected at least monthly thereafter or more frequently as required by
the circumstances. The Servicer shall make or cause to be made a written report
of each such inspection. Such reports shall be retained in the Servicing File
and copies thereof shall be forwarded by the Servicer to the Purchaser.
The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three (3) years after title has been taken to such REO Property, unless
the Servicer determines, and gives an appropriate notice to the Purchaser to
such effect, that a longer period is necessary for the orderly liquidation of
such REO Property. If a longer period than three (3) years is permitted under
the foregoing sentence and is necessary to sell any REO Property, the Servicer
shall report monthly to the Purchaser as to the progress being made in selling
such REO Property. No REO Property shall be marketed for less than the appraised
value, without the prior consent of the Purchaser. No REO Property shall be sold
for less than ninety five percent (95%) of its appraised value, without the
prior consent of the Purchaser. If as of the date title to any REO Property was
acquired by the Servicer there were outstanding unreimbursed Servicing Advances
with respect to the REO Property, the Servicer shall be entitled to immediate
reimbursement from the Purchaser for any related unreimbursed Servicing
Advances. All requests for reimbursement of Servicing Advances shall be in
accordance with the Xxxxxx Xxx Guides. The disposition of REO Property shall be
carried out by the Servicer at such price, and upon such terms and conditions,
as the Servicer deems to be in the best interests of the Purchaser. The Servicer
shall provide monthly reports to Purchaser in reference to the status of the
marketing of the REO Properties.
Notwithstanding anything to the contrary contained herein, the
Purchaser may, at the Purchaser's sole option, terminate the Servicer as
servicer of any such REO Property without payment of any termination fee with
respect thereto, provided that the Servicer shall on the date said termination
takes effect be reimbursed by withdrawal from the Custodial Account for any
unreimbursed Monthly Advances of the Servicer's funds made pursuant to Section
5.03 and any unreimbursed Servicing Advances in each case relating to the
Mortgage Loan underlying such REO Property notwithstanding anything to the
contrary set forth in Section 4.05. In the event of any such termination, the
provisions of Section 10.02 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such REO Property to the
Purchaser or its designee.
Section 4.14 Notification of Maturity Date.
With respect to each Mortgage Loan, the Servicer shall execute and
deliver to the Mortgagor any and all necessary notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
maturity date if required under applicable law.
ARTICLE V
PAYMENTS TO THE PURCHASER
Section 5.01 Distributions.
On each Remittance Date, the Servicer shall distribute by wire
transfer to the Purchaser (i) all amounts credited to the Custodial Account as
of the close of business on the preceding Determination Date, net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05, plus
(ii) all Monthly Advances, if any, which the Servicer is obligated to distribute
pursuant to Section 5.03, minus (iii) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the preceding
Determination Date, which amounts shall be remitted on the Remittance Date next
succeeding the Due Period for such amounts, and any Principal Prepayments
received during the month of such Remittance Date, which amounts shall be
remitted on the next succeeding Remittance Date.
With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each change, plus three percentage points, but
in no event greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Custodial Account by the Servicer on the date
such late payment is made and shall cover the period commencing with the day
following the Business Day on which such payment was due and ending with the
Business Day on which such payment is made, both inclusive. Such interest shall
be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Servicer of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Servicer.
Section 5.02 Statements to the Purchaser.
The Servicer shall furnish to the Purchaser an individual loan
accounting report, as of the last Business Day of each month, in the Servicer's
assigned loan number order to document Mortgage Loan payment activity on an
individual Mortgage Loan basis. With respect to each month, the corresponding
individual loan accounting report shall be received by the Purchaser no later
than the fifth (5th) Business Day of the following month on a disk or tape or
other computer-readable format in such format as may be mutually agreed upon by
both the Purchaser and the Servicer and in hard copy, which report shall contain
the following:
(i) with respect to each Monthly Payment, the amount of
such remittance allocable to principal (including a separate
breakdown of any Principal Prepayment, including the date of such
prepayment, and any Prepayment Penalties or premiums, along with a
detailed report of interest on principal prepayment amounts remitted
in accordance with Section 4.04);
(ii) with respect to each Monthly Payment, the amount of
such remittance allocable to interest;
(iii) the amount of servicing compensation received by
the Servicer during the prior distribution period;
(iv) the aggregate Scheduled Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the
Servicer during the prior distribution period pursuant to Section
4.05;
(vi) the number and aggregate outstanding principal
balances of Mortgage Loans (a) delinquent (1) 30 to 59 days, (2) 60
to 89 days, and (3) 90 days or more; (b) as to which foreclosure has
commenced; and (c) as to which REO Property has been acquired; and
(vii) the amount of any Monthly Advances.
The Servicer shall also provide a monthly servicing report, sorted
in the Purchaser's assigned loan number order, in the form of Exhibit E hereto,
with each such report.
The Servicer shall prepare and file any and all information
statements or other filings required to be delivered to any governmental taxing
authority or to the Purchaser pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Purchaser with such information concerning the
Mortgage Loans as is necessary for the Purchaser to prepare its federal income
tax return as the Purchaser may reasonably request from time to time.
In addition, not more than sixty (60) days after the end of each
calendar year, the Servicer shall furnish to each Person who was a Purchaser at
any time during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Section 5.03 Monthly Advances by the Servicer.
Not later than the close of business on the Business Day preceding
each Remittance Date, the Servicer shall deposit in the Custodial Account an
amount equal to all Monthly Payments, whether or not deferred pursuant to
Section 4.01, which were due on a Mortgage Loan on the immediately preceding Due
Date and delinquent at the close of business on the related Determination Date.
The Servicer's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the earlier of: (i) the date of the
termination or resignation, as applicable, of the Servicer pursuant to Section
4.13, 7.04, 8.01, 9.01 or 9.02 or (ii) the date of final disposition and
liquidation of the related Mortgage Loan or any Mortgaged Property acquired
through foreclosure or a conveyance in lieu of foreclosure, unless the Servicer
reasonably believes such advance to be non-recoverable from proceeds of the
related Mortgage Loan. In such event, the Servicer shall deliver to the
Purchaser an Officer's Certificate of the Servicer to the effect that an officer
of the Servicer has reviewed the related Servicing File and has made the
reasonable determination that any additional advances are non-recoverable from
proceeds of the related Mortgage Loan.
Section 5.04 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Purchaser pursuant to a deed in lieu of foreclosure,
the Servicer shall submit to the Purchaser a liquidation report with respect to
such Mortgaged Property. The Servicer shall also provide reports on the status
of REO Property containing such information as the Purchaser may reasonably
require.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Assumption Agreements.
The Servicer shall, to the extent it has knowledge of any conveyance
or prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that the
Servicer shall not exercise any such rights if prohibited by law or the terms of
the Mortgage Note from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Servicer, with the
approval of the Purchaser (such approval not to be unreasonably withheld), will
enter into an assumption agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. If the Servicer is
prohibited under applicable law from (a) entering into an assumption agreement
with the Person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed or (b) requiring the original Mortgagor to remain liable under
the Mortgage Note, the Servicer, with the prior consent of the Purchaser and the
primary mortgage insurer, if any, is authorized to enter into a substitution of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original Mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement. The Purchaser
shall be deemed to have consented to any assumption for which the Purchaser was
given notification and requested to consent, but for which neither consent nor
an objection was given by the Purchaser within two Business Days of such
notification.
In connection with any such assumption or substitution of liability,
the Servicer shall follow the underwriting practices and procedures of the
Xxxxxx Mae Guides. With respect to an assumption or substitution of liability,
the Mortgage Interest Rate borne by the related Mortgage Note and the amount of
the Monthly Payment may not be changed. If the credit of the proposed transferee
does not meet such underwriting criteria, the Servicer diligently shall, to the
extent permitted by the Mortgage or the Mortgage Note and by applicable law,
accelerate the maturity of the Mortgage Loan. The Servicer shall notify the
Purchaser that any such substitution of liability or assumption agreement has
been completed by forwarding to the Purchaser the original of any such
substitution of liability or assumption agreement, which document shall be added
to the related Mortgage File and shall, for all purposes, be considered a part
of such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. All fees collected by the Servicer for entering
into an assumption or substitution of liability agreement shall belong to the
Servicer.
Notwithstanding the foregoing paragraphs of this Section or any
other provision of this Agreement, the Servicer shall not be deemed to be in
default, breach or any other violation of its obligations hereunder by reason of
any assumption of a Mortgage Loan by operation of law or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 6.01, the term "assumption" is deemed
to also include a sale of the Mortgaged Property subject to the Mortgage that is
not accompanied by an assumption or substitution of liability agreement.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will immediately notify the Purchaser
by a certification, which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account pursuant to Section
4.04 have been or will be so deposited, of a Servicing Officer and shall request
delivery to it of the portion of the Mortgage File held by the Purchaser. The
Purchaser shall no later than five (5) Business Days after receipt of such
certification and request, release or cause to be released to the Servicer, the
related Mortgage Loan Documents and, upon its receipt of such documents, the
Servicer shall promptly prepare and deliver to the Purchaser the requisite
satisfaction or release. No later than three (3) Business Days following its
receipt of such satisfaction or release, the Purchaser shall deliver, or cause
to be delivered, to the Servicer the release or satisfaction properly executed
by the owner of record of the applicable Mortgage or its duly appointed attorney
in fact. If such Mortgage Loan is a MERS Mortgage Loan, the Servicer is
authorized to cause the removal from the registration on the MERS System of such
Mortgage and to execute and deliver, on behalf of the Purchaser, any and all
instruments of satisfaction or cancellation or of partial or full release. No
expense incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
In the event the Servicer satisfies or releases a Mortgage without
having obtained payment in full of the indebtedness secured by the Mortgage or
should it otherwise prejudice any right the Purchaser may have under the
Mortgage Loan Documents, the Servicer, upon written demand, shall remit within
two (2) Business Days to the Purchaser the then outstanding principal balance of
the related Mortgage Loan by deposit thereof in the Custodial Account.
From time to time and as appropriate for the servicing or
foreclosure of the Mortgage Loans, including for the purpose of collection under
any Primary Mortgage Insurance Policy, the Purchaser shall, upon request of the
Servicer and delivery to the Purchaser of a servicing receipt signed by a
Servicing Officer, release the portion of the Mortgage File held by the
Purchaser to the Servicer. Such servicing receipt shall obligate the Servicer to
return such Mortgage Loan Documents to the Purchaser when the need therefor by
the Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited in
the Custodial Account or the Mortgage File has been delivered to an attorney, or
to a public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and the Servicer has
delivered to the Purchaser a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File was delivered and
the purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Purchaser to the Servicer. The Servicer shall
indemnify the Purchaser, and its designee, from and against any and all losses,
claims, damages, penalties, fines, forfeitures, costs and expenses (including
court costs and reasonable attorney's fees) resulting from or related to the
loss, damage or misplacement of any documentation delivered to the Servicer
pursuant to this paragraph.
Section 6.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be
entitled to the Servicing Fee. Additional servicing compensation in the form of
assumption fees, as provided in Section 6.01, and late payment charges shall be
retained by the Servicer to the extent not required to be deposited in the
Custodial Account. The Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided for.
Section 6.04 Annual Statement as to Compliance.
Subject to Section 10.01(c), prior to March 15 of each calendar year
(or if not a Business Day, the immediately preceding Business Day), the Servicer
will deliver to the Purchaser an Officers' Certificate stating, as to each
signatory thereof, that (i) a review of the activities of the Servicer during
the preceding calendar year and of performance under this Agreement has been
made under such officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all of its
obligations under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officers and the nature and status thereof. The first Officer's
Certificate delivered by the Servicer to the Purchaser pursuant to this Section
shall be delivered on or before March 15, 2006. Copies of such statement shall
be provided by the Servicer to the Purchaser upon request.
Section 6.05 Annual Independent Certified Public Accountants'
Servicing Report.
Subject to Section 10.01(c), prior to March 15 of each calendar year
(or if not a Business Day, the immediately preceding Business Day), the Servicer
at its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Purchaser to the effect that such firm has examined certain
documents and records relating to the Servicer's servicing of mortgage loans of
the same type as the Mortgage Loans pursuant to servicing agreements
substantially similar to this Agreement, which agreements may include this
Agreement, and that, on the basis of such an examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, such firm is of the opinion that the
Servicer's servicing has been conducted in compliance with the agreements
examined pursuant to this Section 6.05, except for (i) such exceptions as such
firm shall believe to be immaterial, and (ii) such other exceptions as shall be
set forth in such statement. The first statement delivered by the Servicer to
the Purchaser pursuant to this Section shall be delivered on or before March 15,
2006. Copies of such statement shall be provided by the Servicer to the
Purchaser. In addition, on an annual basis, the Servicer shall provide the
Purchaser with copies of its audited financial statements upon execution by the
Purchaser of an agreement to keep confidential the contents of such financial
statements.
Section 6.06 Purchaser's Right to Examine Servicer Records.
The Purchaser shall have the right to examine and audit upon
reasonable notice to the Servicer, during business hours or at such other times
as might be reasonable under applicable circumstances, any and all of the books,
records, documentation or other information of the Servicer, or held by another
for the Servicer or on its behalf or otherwise, which relates to the performance
or observance by the Servicer of the terms, covenants or conditions of this
Agreement.
The Servicer shall provide to the Purchaser and any supervisory
agents or examiners representing a state or federal governmental agency having
jurisdiction over the Purchaser, including but not limited to OTS, FDIC and
other similar entities, access to any documentation regarding the Mortgage Loans
in the possession of the Servicer which may be required by any applicable
regulations. Such access shall be afforded without charge, upon reasonable
request, during normal business hours and at the offices of the Servicer, and in
accordance with the federal government, FDIC, OTS, or any other similar
regulations.
Section 6.07 Servicer Shall Provide Information as Reasonably
Required.
The Seller shall furnish to the Purchaser during the term of this
Agreement, at the Servicer's expense, such periodic, special or other reports,
information or documentation, whether or not provided for herein, as shall be
necessary, reasonable or appropriate in respect to the Purchaser, or otherwise
in respect to the Mortgage Loans and the performance of the Servicer under this
Agreement, including any reports, information or documentation reasonably
required to comply with any regulations regarding any supervisory agents or
examiners of the Purchaser all such reports or information to be as provided by
and in accordance with such applicable instructions and directions as the
Purchaser may reasonably request in relation to this Agreement or the
performance of the Servicer under this Agreement. The Servicer agrees to execute
and deliver all such instruments and take all such action as the Purchaser, from
time to time, may reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective purchaser audited financial statements of the
Seller and the Servicer for the most recently completed two (2) fiscal years for
which such statements are available, as well as a consolidated statement of
condition at the end of the last two (2) fiscal years covered by any
consolidated statement of operations. If it has not already done so, the Seller
and the Servicer shall furnish promptly to the Purchaser or a prospective
purchaser copies of the statements specified above; provided, however, that
prior to furnishing such statements or information to any prospective purchaser,
the Seller and the Servicer may require such prospective purchaser to execute a
confidentiality agreement in a form satisfactory to the Seller or Servicer, as
applicable.
The Servicer shall make reasonably available to the Purchaser or any
prospective purchaser a knowledgeable financial or accounting officer for the
purpose of answering questions and to permit any prospective purchaser to
inspect the Servicer's servicing facilities for the purpose of satisfying such
prospective purchaser that the Servicer has the ability to service the Mortgage
Loans as provided in this Agreement.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Purchaser or its designee the related
Servicing File during the time the Purchaser retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and regulations.
ARTICLE VII
THE SELLER AND THE SERVICER
Section 7.01 Indemnification; Third Party Claims.
The Servicer agrees to indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Servicer
to observe and perform its duties, obligations, covenants, and agreements to
service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Seller agrees to indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Seller
to observe and perform its duties, obligations, and covenants in strict
compliance with the terms of this Agreement or as a result of the breach of a
representation or warranty set forth in Sections 3.01 or 3.02 of this Agreement.
An indemnifying party hereunder shall immediately notify the Purchaser if a
claim is made by a third party with respect to this Agreement or a Mortgage
Loan, assume (with the consent of the Purchaser) the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. An indemnifying party
hereunder shall follow any written instructions received from the Purchaser in
connection with such claim. The Purchaser shall promptly reimburse an
indemnifying party hereunder for all amounts advanced by it pursuant to the two
preceding sentences except when the claim relates to the failure of the Servicer
to service and administer the Mortgage Loans in strict compliance with the terms
of this Agreement, the failure of the Seller to perform its duties and
obligations pursuant to this Agreement, the breach of representation or warranty
set forth in Sections 3.01 or 3.02, or the gross negligence, bad faith or
willful misconduct of either the Seller or the Servicer. The provisions of this
Section 7.01 shall survive termination of this Agreement and transfer of the
servicing rights.
Section 7.02 Merger or Consolidation of the Seller or the Servicer.
Each of the Seller and the Servicer shall keep in full effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation except as permitted herein, and shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which either the Seller or the Servicer may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which either the Seller or the Servicer shall be a party, or
any Person succeeding to the business of either the Seller or the Servicer
whether or not related to loan servicing, shall be the successor of the Seller
or of the Servicer, as applicable, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor or
surviving Person shall be an institution or (i) having a GAAP net worth of not
less than $25,000,000, (ii) the deposits of which are insured by the FDIC, SAIF
and/or BIF, or which is a HUD-approved mortgagee whose primary business is in
origination and servicing of first lien mortgage loans, and (iii) who is a
Xxxxxx Xxx or Xxxxxxx Mac approved seller/servicer in good standing.
Notwithstanding the foregoing, if the successor or surviving Person is an
institution with a GAAP net worth of less than $25,000,000, then the Purchaser
may, in its sole discretion, waive such minimum GAAP net worth requirement.
Section 7.03 Limitation on Liability of the Seller and Others.
None of the Seller, the Servicer nor any of the officers, employees
or agents of the Seller or the Servicer shall be under any liability to the
Purchaser for any action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement, or for errors in judgment made in good
faith; provided, however, that this provision shall not protect the Seller, the
Servicer or any such person against any breach of warranties or representations
made herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed by reason of negligence, bad faith or willful misconduct,
or any breach of the terms and conditions of this Agreement. The Seller, the
Servicer and any officer, employee or agent of the Seller and the Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by the Purchaser respecting any matters arising hereunder. The
Servicer shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties to service the Mortgage Loans
in accordance with this Agreement and which in its reasonable opinion may
involve it in any expenses or liability; provided, however, that the Servicer
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto. In such event, the reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities for which the Purchaser will be liable, and the Servicer
shall be entitled to be reimbursed therefor from the Purchaser upon written
demand.
Section 7.04 Servicer Not to Resign.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Servicer. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided in
Section 11.01.
Section 7.05 No Transfer of Servicing.
With respect to the retention of the Servicer to service the
Mortgage Loans hereunder, the Servicer acknowledges that the Purchaser has acted
in reliance upon the Servicer's independent status, the adequacy of its
servicing facilities, plan, personnel, records and procedures, its integrity,
reputation and financial standing and the continuance thereof. Without in any
way limiting the generality of this Section 7.05, the Servicer shall not either
assign this Agreement or the servicing hereunder or delegate its rights or
duties hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written approval
of the Purchaser, which consent shall be granted or withheld in the Purchaser's
sole discretion.
Without in any way limiting the generality of this Section 7.05, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof without the prior written consent of the Purchaser, then the Purchaser
shall have the right to terminate this Agreement as set forth in Section 9.02,
without any payment of any penalty or damages and without any liability
whatsoever to the Servicer (other than with respect to accrued but unpaid
Monthly Advances, Servicing Advances and Servicing Fees remaining unpaid) or any
third party.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
In case one or more of the following Events of Default by the
Servicer shall occur and be continuing, that is to say:
(i) any failure by the Servicer to remit to the
Purchaser any payment required to be made under the terms of this
Agreement which continues unremedied for a period of two (2)
Business Days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Servicer by the Purchaser; or
(ii) failure on the part of the Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements on the part of the Servicer set forth in this Agreement,
or if any of the representations and warranties of the Servicer in
Section 3.01 proves to be untrue in any material respect, which
failure or breach continues unremedied for a period of thirty (30)
days (except that such number of days shall be fifteen (15) in the
case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement) after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Purchaser; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such
decree or order shall have remained in force undischarged or
unstayed for a period of sixty (60) days; or
(iv) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Servicer or of or relating
to all or substantially all of its property; or
(v) the Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vi) the Servicer ceases to be approved by Xxxxxx Xxx or
Xxxxxxx Mac as a mortgage loan seller and servicer for more than
thirty (30) days; or
(vii) the Servicer attempts to assign its right to
servicing compensation hereunder or the Servicer attempts, without
the consent of the Purchaser, to sell or otherwise dispose of all or
substantially all of its property or assets or to assign this
Agreement or the servicing responsibilities hereunder or to delegate
its duties hereunder or any portion thereof; or
(viii) the Servicer ceases to be (a) licensed to service
first lien residential mortgage loans in each jurisdiction in which
a Mortgaged Property is located and such licensing is required, and
(b) qualified to transact business in any jurisdiction where it is
currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Servicer's
ability to perform its obligations hereunder; or
(ix) the Servicer fails to meet the eligibility criteria
set forth in the last sentence of Section 7.02.
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Purchaser, by notice in writing to the Servicer may, in
addition to whatever rights the Purchaser may have under Sections 3.03 and 7.01
and at law or equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. On or after the receipt by the Servicer
of such written notice of termination, all authority and power of the Servicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the successor appointed pursuant to Section
11.01. Upon written request from the Purchaser, the Servicer shall prepare,
execute and deliver, any and all documents and other instruments, place in such
successor's possession all Servicing Files, and do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise, at the Servicer's sole
expense. The Servicer agrees to cooperate with the Purchaser and such successor
in effecting the termination of the Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans or any REO Property.
If any of the Mortgage Loans are MERS Mortgage Loans, in connection
with the termination or resignation (as described in Section 8.04) of the
Servicer hereunder, either (i) the successor Servicer shall represent and
warrant that it is a member of MERS in good standing and shall agree to comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS, or (ii)
the predecessor Servicer shall cooperate with the successor Servicer either (x)
in causing MERS to execute and deliver an assignment of Mortgage in recordable
form to transfer the Mortgage from MERS to the Purchaser and to execute and
deliver such other notices, documents and other instruments as may be necessary
or desirable to effect a transfer of such Mortgage Loan or servicing of such
Mortgage Loan on the MERS(R) System to the successor Servicer or (y) in causing
MERS to designate on the MERS(R) System the successor Servicer as the servicer
of such Mortgage Loan.
Section 8.02 Waiver of Defaults.
The Purchaser may waive only by written notice any default by the
Servicer in the performance of its obligations hereunder and its consequences.
Upon any such waiver of a past default, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE IX
TERMINATION
Section 9.01 Termination.
The respective obligations and responsibilities of the Servicer
shall terminate upon: (i) the later of the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or the
disposition of all REO Property and the remittance of all funds due hereunder;
(ii) by mutual consent of the Servicer and the Purchaser in writing; or (iii)
termination of the Servicer by the Purchaser with or without cause under the
terms of this Agreement.
ARTICLE X
RECONSTITUTION OF MORTGAGE LOANS
Section 10.01 Reconstitution of Mortgage Loans.
(a) The Seller and the Servicer acknowledge and the Purchaser agrees
that with respect to some or all of the Mortgage Loans, the Purchaser may effect
either:
(i) one or more sales of the Mortgage Loans as whole
loan transfers (each, a "Whole Loan Transfer"); and/or
(ii) one or more Agency Transfers; and/or
(iii) one or more sales of the Mortgage Loans as public
or private pass-through transfers (each, a "Pass-Through Transfer").
(b) With respect to each Whole Loan Transfer, Agency Transfer or
Pass-Through Transfer, as the case may, the Seller and the Servicer agree:
(i) to cooperate fully with the Purchaser and any
prospective purchaser with respect to all reasonable requests and
due diligence procedures including participating in meetings with
rating agencies, bond insurers and such other parties as the
Purchaser shall designate and participating in meetings with
prospective purchasers of the Mortgage Loans or interests therein
and providing information contained in the Mortgage Loan Schedule
including any diskette or other related data tapes provided as
reasonably requested by such purchasers;
(ii) to execute all agreements required to be executed
by the Seller and Servicer in connection with such Whole Loan
Transfer, Agency Transfer or Pass-Through Transfer provided that any
such agreements be consistent with the terms hereof and impose no
greater duties, liabilities or obligations upon the Seller than
those set forth herein and provided that each of the Seller and the
Servicer is given an opportunity to review and reasonably negotiate
in good faith the content of such documents not specifically
referenced or provided for herein;
(iii) either (a) for the period commencing on the
related Closing Date and continuing for six (6) months thereafter,
to make all the representations and warranties set forth in Section
3.01 and solely with respect to the Seller, Section 3.02, as of the
date of the Whole Loan Transfer, Agency Transfer or Pass-Through
Transfer, provided, that, with respect to representations and
warranties for which modifications may be necessary to reflect
changes due to events that may have occurred since the related
Closing Date, such representations and warranties shall be restated
as of the date of the related Whole Loan Transfer, Agency Transfer
or Pass-Through Transfer but modified, if necessary, to reflect
changes due to events that may have occurred from the related
Closing Date through the related Transfer Date or (b) for the period
thereafter, to make all the representations and warranties set forth
in Section 3.01 and with respect to Section 3.02, only those
representations and warranties that pertain to the continuing
obligations of the Servicer, as of the date of the Whole Loan
Transfer, Agency Transfer or Pass-Through Transfer, as specified in
a letter from the Purchaser to the Seller and the Servicer
(substantially in the form of Exhibit H hereto) indicating the date
of the Whole Loan Transfer, Agency Transfer or Pass-Through Transfer
and the applicable Mortgage Loans. No other document need be
prepared indicating that the Seller and the Servicer are making such
representations and warranties as to the applicable Mortgage Loans
as of such date;
(iv) to negotiate and execute one or more master
servicing agreements between the Servicer and any third party
servicer which is servicing loans on behalf of the Purchaser
providing for the Servicer to master service such Mortgage Loans on
behalf of the Purchaser, provided that any such agreements be
consistent with the terms hereof and impose no greater duties,
liabilities or obligations upon the Seller than those set forth
herein and provided that each of the Seller and the Servicer is
given an opportunity to review and reasonably negotiate in good
faith the content of such documents not specifically referenced or
provided for herein;
(v) to negotiate and execute one or more subservicing
agreements between the Servicer and any master servicer which is
generally considered to be a prudent master servicer in the
secondary mortgage market designated by the Purchaser in its sole
discretion after consultation with the Servicer and/or one or more
custodial and servicing agreements among the Purchaser or an
affiliate of the Purchaser, the Servicer and a third party
custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the
Purchaser in its sole discretion after consultation with the
Servicer, in either case for the purpose of pooling the Mortgage
Loans with other mortgage loans for resale or securitization,
provided that any such agreements be consistent with the terms
hereof and impose no greater duties, liabilities or obligations upon
the Seller than those set forth herein and provided that each of the
Seller and the Servicer is given an opportunity to review and
reasonably negotiate in good faith the content of such documents not
specifically referenced or provided for herein;
(vi) in connection with any securitization of any
Mortgage Loans, to execute a pooling and servicing agreement, which
pooling and servicing agreement may, at the Purchaser's direction,
contain contractual provisions including, but not limited to, a
24-day certificate payment delay (54-day total payment delay),
servicer advances of delinquent scheduled payments of principal and
interest through liquidation (unless deemed non-recoverable) and
payment of compensating interest with respect to prepayment interest
shortfalls (to the extent of the monthly servicing fee payable
thereto), servicing and mortgage loan representations and warranties
which in form and substance conform to secondary market standards
for securities backed by mortgage loans similar to the Mortgage
Loans and such provisions with regard to servicing responsibilities,
investor reporting (including without limitation, the obligation to
deliver an officer's certificate related to the Xxxxxxxx-Xxxxx Act
of 2002 to the depositor, the master servicer, if any, and the
trustee, in the form attached hereto as Exhibit I, or in such other
form as may be required under the ABS Rules, as defined in clause
(c) below), segregation and deposit of principal and interest
payments, custody of the Mortgage Loans, and other covenants as are
required by the Purchaser and one or more nationally recognized
rating agencies for "AAA" rated mortgage pass-through transactions
which are "mortgage related securities" for purposes of the
Secondary Mortgage Market Enhancement Act of 1984, unless otherwise
mutually agreed, provided that any such agreements be consistent
with the terms hereof and impose no greater duties, liabilities, or
obligations upon the Seller than those set forth herein and provided
that each of the Seller and the Servicer is given an opportunity to
review and reasonably negotiate in good faith the content of such
documents not specifically referenced or provided for herein;
(vii) to deliver to the Purchaser and to any Person
designated by the Purchaser (a) for inclusion in any prospectus or
other offering material such publicly available information
regarding the Seller and the Servicer, its financial condition and
its mortgage loan delinquency, foreclosure and loss experience and
any additional information requested by the Purchaser, (b) any
similar non public, unaudited financial information (which the
Purchaser may, at its option and at its cost, have audited by
certified public accountants) and such other information as is
reasonably requested by the Purchaser and which the Seller and the
Servicer are capable of providing without unreasonable effort or
expense, and to indemnify the Purchaser and its affiliates for
material misstatements or omissions contained in such information,
and (c) such statements and audit letters of reputable, certified
public accountants pertaining to information provided by the Seller
and the Servicer pursuant to clause (a) above as shall be reasonably
requested by the Purchaser; and
(viii) to deliver to the Purchaser, and to any Person
designated by the Purchaser, opinions of counsel in a form
reasonably acceptable to the Purchaser as are customarily delivered
by sellers and servicers and reasonably determined by the Purchaser
to be necessary in connection with Whole Loan Transfers, Agency
Transfers or Pass-Through Transfers, as the case may be, it being
understood that the cost of any opinions of counsel (other than
in-house counsel) that may be required for a Whole Loan Transfer,
Agency Transfer or Pass-Through Transfer, as the case may be, shall
be the responsibility of the Purchaser.
(c) Notwithstanding the foregoing, in connection with the
effectiveness of final rules promulgated by the Commission related to
asset-backed securities (Release Nos. 33-8518; 34-50905) (as such rules may be
amended or modified from time to time, the "ABS Rules"), the Seller and Servicer
shall fully cooperate with the Purchaser in providing such other statements and
reports and providing such additional disclosure and other information,
including but not limited to static pool data, as required by and in conformance
with the ABS Rules.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Successor to the Servicer.
Prior to termination of Servicer's responsibilities and duties under
this Agreement pursuant to Section 4.13, 7.04, 8.01, 9.01 or 9.02, the Purchaser
shall (i) succeed to and assume all of the Servicer's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor having
the characteristics set forth in Section 7.02 hereof and which shall succeed to
all rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as the Purchaser and such
successor shall agree. In the event that the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to the
aforementioned Sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned Sections shall not become effective until a successor
shall be appointed pursuant to this Section and shall in no event relieve the
Servicer of the representations and warranties made pursuant to Section 3.01 and
the indemnification obligations of the Servicer pursuant to Section 7.01.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Purchaser an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement. Any termination or resignation of the Servicer or this
Agreement pursuant to Section 4.13, 7.04, 7.05, 8.01, 9.01, or 9.02 shall not
affect any claims that the Purchaser may have against the Servicer arising prior
to any such termination or resignation.
The Servicer shall promptly deliver to the successor the funds in
the Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the Servicer shall account for
all funds. The Servicer shall execute and deliver such instruments and do such
other things all as may reasonably be required to more fully and definitely vest
and confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer. The successor shall make
arrangements as it may deem appropriate to reimburse the Servicer for
unrecovered Servicing Advances which the successor retains hereunder and which
would otherwise have been recovered by the Servicer pursuant to this Agreement
but for the appointment of the successor servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Purchaser of such appointment.
Section 11.02 Amendment.
This Agreement may be amended or supplemented from time to time as
follows: (a) with respect to Mortgage Loans not yet purchased by the Purchaser,
by delivery of a written notification of amendment executed solely by the
Purchaser, which amendment shall be effective from and after the date delivered
to the Purchaser for all subsequent Mortgage Loans purchased hereunder; and (b)
with respect to Mortgage Loans previously purchased by the Purchaser, by written
agreement executed by the Purchaser, the Seller and the Servicer.
Section 11.03 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any of all the
Mortgaged Properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Seller at the Seller's expense on direction of the Purchaser.
Section 11.04 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of law
provisions, except to the extent preempted by Federal law. The obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
Section 11.05 Notices.
Any demands, notices or other communications permitted or required
hereunder shall be in writing and shall be deemed conclusively to have been
given if personally delivered at or mailed by registered mail, postage prepaid,
and return receipt requested or certified mail, return receipt requested, or
transmitted by telex, telegraph or telecopier and confirmed by a similar mailed
writing, as follows:
(i) if to the Seller:
SunTrust Mortgage, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
(ii) if to the Servicer:
SunTrust Mortgage, Inc.
0000 Xxxxxx Xxxxxx, XXX-0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx-Xxxxxxx
(iii) if to the Purchaser:
SunTrust Asset Funding, LLC
Mail Code 3950
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
with copy to:
SunTrust Capital Markets, Inc.
MC 3950
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 11.06 Severability of Provisions.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in good
faith, to develop a structure the economic effect of which is nearly as possible
the same as the economic effect of this Agreement without regard to such
invalidity.
Section 11.07 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 11.08 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the
meanings assigned to them in this Agreement and include the plural
as well as the singular, and the use of any gender herein shall be
deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections,"
Subsections," "Paragraphs," and other subdivisions without reference
to a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further
reference to a Section is a reference to such Subsection as
contained in the same Section in which the reference appears, and
this rule shall also apply to Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other
words of similar import refer to this Agreement as a whole and not
to any particular provision;
(vi) the term "include" or "including" shall mean
without limitation by reason of enumeration; and
(vii) headings of the Articles and Sections in this
Agreement are for reference purposes only and shall not be deemed to
have any substantive effect.
Section 11.09 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (i) consents, waivers and modifications which may hereafter
be executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 11.10 Confidentiality of Information.
Each party recognizes that, in connection with this Agreement, it
may become privy to non-public information regarding the financial condition,
operations and prospects of the other party. Except as required by law, each
party agrees to keep all non-public information regarding the other party
strictly confidential, and to use all such information solely in order to
effectuate the purpose of the Agreement, provided that each party may provide
confidential information to its employees, agents and affiliates who have a need
to know such information in order to effectuate the transaction, provided
further that such information is identified as confidential non-public
information. In addition, confidential information may be provided to a
regulatory authority with supervisory power over the Purchaser, provided such
information is identified as confidential non-public information.
Section 11.11 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
Section 11.12 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Seller or the Servicer hereof, to assign, in whole or in part, its interest
under this Agreement with respect to some or all of the Mortgage Loans, and
designate any person to exercise any rights of the Purchaser hereunder, by
executing an Assignment, Assumption and Recognition Agreement substantially in
the form of Exhibit D hereto and the assignee or designee shall accede to the
rights and obligations hereunder of the Purchaser with respect to such Mortgage
Loans. In no event shall the Purchaser sell a partial interest in any Mortgage
Loan without the written consent of the Seller, which consent shall not be
unreasonably denied. All references to the Purchaser in this Agreement shall be
deemed to include its assignee or designee.
Section 11.13 No Partnership.
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Servicer shall be rendered as an independent contractor and not as agent for
Purchaser.
Section 11.14 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 7.02, this Agreement
shall inure to the benefit of and be binding upon the Seller, the Servicer and
the Purchaser and their respective successors and assigns.
Section 11.15 Entire Agreement.
Each of the parties to this Agreement acknowledges that no
representations, agreements or promises were made to any of the other parties to
this Agreement or any of its employees other than those representations,
agreements or promises specifically contained herein. This Agreement and the
related Purchase Price and Terms Letter set forth the entire understanding
between the parties hereto and shall be binding upon all successors of all of
the parties. In the event of any inconsistency between a Purchase Price and
Terms Letter and this Agreement, this Agreement shall control.
Section 11.16 No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone, by mail, or electronically by e-mail or through the
internet or otherwise, solicit the borrower or obligor under any Mortgage Loan
to refinance the Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the list
of such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant hereto on the
related Closing Date and the Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and agreed
that promotions undertaken by the Seller or any affiliate of the Seller which
are directed to the general public at large, or segments thereof, provided that
no segment shall consist primarily of the borrowers or obligors under the
Mortgage Loans, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements shall not constitute solicitation under this Section 11.16. This
Section 11.16 shall not be deemed to preclude the Seller or any of its
affiliates from soliciting any Mortgagor for any other financial products or
services. The Seller shall use its best efforts to prevent the sale of the name
of any Mortgagor to any Person who is not an affiliate of the Seller.
Section 11.17 Costs.
The Purchaser shall pay any commissions due its salesmen, the
expenses of its accountants and attorneys and the expenses and fees of any
broker retained by the Purchaser with respect to the transactions covered by
this Agreement. All other costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans, including, without limitation, fees
for recording intervening assignments of mortgage and Assignments of Mortgage,
the cost of obtaining tax service contracts and the legal fees and expenses of
its attorneys shall be paid by the Seller. The Seller shall be responsible for
causing the recordation of all Assignments of Mortgage and all intervening
assignments of mortgage, as applicable.
[signature page to follow]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
SUNTRUST ASSET FUNDING, LLC
Purchaser
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
SUNTRUST MORTGAGE, INC.
Seller and Servicer
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
DO NOT EXECUTE
[Signature Page to Seller's Purchase, Warranties and Servicing Agreement,
dated as of November 1, 2005]
Exhibit A-1
Contents of Mortgage File
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser, and which shall be retained by the Seller in the Servicing File or
delivered to the Purchaser or its designee pursuant to Sections 2.04 and 2.05 of
the Seller's Purchase, Warranties and Servicing Agreement.
1. The original Mortgage Note endorsed "Pay to the order of
___________________ without recourse," and signed in the name of the Seller by
an authorized officer, with all intervening endorsements showing a complete
chain of title from the originator to the Seller. If the Mortgage Loan was
acquired by the Seller in a merger, the endorsement must be by "[Seller],
successor by merger to the [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the endorsement must be by "[Seller] formerly known as [previous name]". If the
original note is unavailable, seller will provide an affidavit of lost note (in
form acceptable to the Purchaser) stating that the original Mortgage Note was
lost or destroyed, together with a copy of such Mortgage Note and indemnifying
the Purchaser against any and all claims arising as a result of any person or
entity claiming they are the holder of the note or that the note has been paid
off and returned.
2. Except as provided below and for each Mortgage Loan that is not a
MERS Mortgage Loan, the original Mortgage with evidence of recording thereon, or
a copy thereof certified by the public recording office in which such mortgage
has been recorded or, if the original Mortgage has not been returned from the
applicable public recording office, a photocopy of the original Mortgage,
together with a certificate of the Seller certifying that the original Mortgage
has been delivered for recording in the appropriate public recording office of
the jurisdiction in which the Mortgaged Property is located and in the case of
each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN
of the Mortgage Loans and either language indicating that the Mortgage Loan is a
MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded.
3. The original or certified to be a true copy or if in electronic
form identified on the Mortgage Loan Schedule, the certificate number, certified
by the Seller, of the related Primary Mortgage Insurance Policy or LPMI Policy,
if required.
4. In the case of each Mortgage Loan that is not a MERS Mortgage
Loan, the original Assignment, from the Seller in accordance with Purchaser's
instructions, which assignment shall, but for any blanks requested by the
Purchaser, be in form and substance acceptable for recording, or a photocopy
certified by the Seller as a true and correct copy of the original Assignment
which has been sent for recordation. If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
must be by "[Seller] formerly known as [previous name]".
5. With respect to Mortgage Loans that are not Co-op Loans, the
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim binder
or preliminary report of title issued by the title insurance or escrow company.
6. Originals of all recorded intervening Assignments, or copies
thereof, certified by the public recording office in which such Assignments have
been recorded showing a complete chain of title from the originator to the
Seller, with evidence of recording thereon, or a copy thereof certified by the
public recording office in which such Assignment has been recorded or, if the
original Assignment has not been returned from the applicable public recording
office, a photocopy of the original Assignment, together with a certificate of
the Seller certifying that the original Assignment has been delivered for
recording in the appropriate public recording office of the jurisdiction in
which the Mortgaged Property is located.
7. Originals, or copies thereof certified by the public recording
office in which such documents have been recorded, of each assumption,
extension, modification, written assurance or substitution agreements, if
applicable, or if the original of such document has not been returned from the
applicable public recording office, a photocopy of such original document
together with certificate of Seller certifying the original of such document has
been delivered for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located.
8. If the Mortgage Note or Mortgage or any other material document
or instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the original power of attorney or other instrument that
authorized and empowered such person to sign bearing evidence that such
instrument has been recorded, if so required in the appropriate jurisdiction
where the Mortgaged Property is located (or, in lieu thereof, a duplicate or
conformed copy of such instrument, together with a certificate of receipt from
the recording office, certifying that such copy represents a true and complete
copy of the original and that such original has been or is currently submitted
to be recorded in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located), or if the original power
of attorney or other such instrument has been delivered for recording in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located.
9. With respect to a Co-op Loan: (i) a copy of the Co-op Lease and
the assignment of such Co-op Lease to the originator of the Mortgage Loan, with
all intervening assignments showing a complete chain of title and an assignment
thereof by Seller; (ii) the stock certificate together with an undated stock
power relating to such stock certificate executed in blank; (iii) the
recognition agreement in substantially the same form as standard a "AZTECH"
form; (iv) copies of the financial statement filed by the originator as secured
party and, if applicable, a filed UCC-3 Assignment of the subject security
interest showing a complete chain of title, together with an executed UCC-3
Assignment of such security interest by the Seller in a form sufficient for
filing.
10. The original of any guarantee executed in connection with the
Mortgage Note.
Notwithstanding anything to the contrary herein, the Seller may
provide one certificate for all of the Mortgage Loans indicating that the
documents were delivered for recording.
Exhibit A-2
Contents of Servicing File
With respect to each Mortgage Loan, the Servicing File shall include
each of the following items, which shall be available for inspection by the
Purchaser:
1. Mortgage Loan closing statement (Form HUD-1) and any other
truth-in-lending or real estate settlement procedure forms required by law.
2. Residential loan application.
3. Uniform underwriter and transmittal summary (Xxxxxx Xxx Form
1008) or reasonable equivalent.
4. Credit report on the mortgagor.
5. Business credit report, if applicable.
6. Residential appraisal report and attachments thereto.
7. Verification of employment and income except for Mortgage Loans
originated under a Limited Documentation Program, all in accordance with
Seller's Underwriting Standards.
8. Verification of acceptable evidence of source and amount of down
payment, in accordance with the Underwriting Standards.
9. Photograph of the Mortgaged Property (may be part of appraisal).
10. Survey of the Mortgaged Property, if any.
11. Sales contract, if applicable.
12. If available, termite report, structural engineer's report,
water portability and septic certification.
13. Any original security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
14. Any ground lease, including all amendments, modifications and
supplements thereto.
15. Any other document required to service the Mortgage Loans.
Exhibit B
Form of Custodial Account Letter Agreement
__________________ , 200_
To:
As "Servicer" under the Seller's Purchase, Warranties and Servicing
Agreement, dated as of November 1, 2005 (the "Agreement"), we hereby authorize
and request you to establish an account, as a Custodial Account pursuant to
Section 4.04 of the Agreement, to be designated as "___________________, in
trust for the Purchaser, owner of various whole loan series". All deposits in
the account shall be subject to withdrawal therefrom by order signed by the
Servicer. This letter is submitted to you in duplicate. Please execute and
return one original to us.
_______________________________
SERVICER
By:____________________________
Name:__________________________
Title:_________________________
The undersigned, as "Depository," hereby certifies that the above
described account has been established under Account Number ______________, at
the office of the depository indicated above, and agrees to honor withdrawals on
such account as provided above.
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
Exhibit C
Form of Escrow Account Letter Agreement
_____________________, 200_
To:
As "Servicer" under the Seller's Purchase, Warranties and Servicing
Agreement, dated as of November 1, 2005 (the "Agreement"), we hereby authorize
and request you to establish an account, as an Escrow Account pursuant to
Section 4.06 of the Agreement, to be designated as "______________________, in
trust for the Purchaser, owner of various whole loan series, and various
Mortgagors". All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
_______________________________
SERVICER
By:____________________________
Name:__________________________
Title:_________________________
The undersigned, as "Depository," hereby certifies that the above
described account has been established under Account Number ______________, at
the office of the depository indicated above, and agrees to honor withdrawals on
such account as provided above.
By:____________________________
Name:__________________________
Title:_________________________
Exhibit D
Form of Assignment, Assumption and Recognition Agreement
This Assignment, Assumption and Recognition Agreement (this
"Assignment Agreement"), dated as of _________, between SunTrust Asset Funding,
LLC, a Delaware limited liability company (the "Assignor"),
______________________, a ________ [__________] (the "Assignee"), and SunTrust
Mortgage, Inc. (the "Seller"):
For good and valuable consideration the receipt and sufficiency of
which hereby are acknowledged, and of the premises and mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all
of the right, title and interest of Assignor, as Purchaser, in, to and under (a)
those certain mortgage loans listed on Exhibit A attached hereto (the "Mortgage
Loans"); and (b) the Seller's Purchase, Warranties and Servicing Agreement dated
as of November 1, 2005, but only to the extent of the Mortgage Loans (the
"Purchase Agreement"). For purposes of this Assignment Agreement, the term
"Purchase Agreement" includes any separate xxxx of sale, assignment and
conveyance or other instrument pursuant to which Seller and Assignor effectuated
the purchase and sale of any Mortgage Loan following the execution and delivery
of the Seller's Purchase, Warranties and Servicing Agreement dated as of
November 1, 2005.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under any
all obligations of the Assignor with respect to any mortgage loans subject to
the Purchase Agreement which are not the Mortgage Loans set forth on Exhibit A
attached hereto and are not the subject of this Assignment Agreement.
2. Each of the Seller and the Assignor represent and warrant to the
Assignee that (a) the copy of the Purchase Agreement, attached hereto as Exhibit
B, provided to the Assignee, is a true, complete and accurate copy of the
Purchase Agreement, (b) the Purchase Agreement is in full force and effect as of
the date hereof, (c) the provisions thereof have not been waived, amended or
modified in any respect, nor have any notices of termination been given
thereunder, (d) the Purchase Agreement contains all of the terms and conditions
governing the sale of the Mortgage Loans by Seller to Assignor and the purchase
of the Mortgage Loans by Assignor from Seller; provided, however, that the date
of purchase and sale and the amount of payment for the Mortgage Loans may be set
out in a Purchase Price and Terms Letter, as defined in the Purchase Agreement,
and (e) Seller sold, conveyed and transferred each Mortgage Loan to Assignor
pursuant to the Purchase Agreement.
3. The Assignor warrants and represents to, and covenants with, the
Assignee and the Seller that:
(a) As of the date hereof, the Assignor is not in default under the
Purchase Agreement;
(b) The Assignor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans and any and all of its interests,
rights and obligations under the Purchase Agreement, free from any and all
claims and encumbrances arising out of the Assignor's ownership thereof, and the
Mortgage Loans, as well as the Purchase Agreement, upon the transfer thereof to
the Assignee as contemplated herein, shall be free and clear of all such liens,
claims and encumbrances or any lien claim or encumbrance arising out of the
ownership of the Mortgage Loans by any person at any time after Assignor first
acquired any Mortgage Loan from the Seller;
(c) The Assignor has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses available to the Seller with
respect to the Purchase Agreement or the Mortgage Loans;
(d) The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Purchase Agreement or the
Mortgage Loans. The Assignor has no knowledge of, and has not received notice
of, any waivers under or amendments or other modifications of, or assignments of
rights or obligations under or defaults under, the Purchase Agreement, or the
Mortgage Loans;
(e) The Assignor is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all requisite corporate power and authority to sell, transfer and assign
the Mortgage Loans;
(f) The Assignor has full corporate power and authority to execute,
deliver and perform under this Assignment Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Assignment Agreement is in the ordinary course of the Assignor's
business and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Assignor's charter or by-laws, or any legal
restriction, or any material agreement or instrument to which the Assignor is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignor or its
property is subject. The execution, delivery and performance by the Assignor of
this Assignment Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
of the Assignor. This Assignment Agreement has been duly executed and delivered
by the Assignor and constitutes the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its respective
terms except as enforceability thereof may be limited by bankruptcy, insolvency,
or reorganization or other similar laws now or hereinafter in effect relating to
creditor's rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in law;
(g) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Assignor in connection with the execution, delivery
or performance by the Assignor of this Assignment Agreement, or the consummation
by it of the transactions contemplated hereby; and
(h) The Assignor has paid the purchase price for the Mortgage Loans
and has satisfied any conditions to closing required of it under the terms of
the Purchase Agreement.
4. The Assignee warrants and represents to, and covenants with, the
Assignor and the Seller that:
(a) The Assignee is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all requisite corporate power and authority to acquire, own and purchase
the Mortgage Loans;
(b) The Assignee has full corporate power and authority to execute,
deliver and perform under this Assignment Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Assignment Agreement is in the ordinary course of the Assignee's
business and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Assignee's charter or by-laws, or any legal
restriction, or any material agreement or instrument to which the Assignee is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignee or its
property is subject. The execution, delivery and performance by the Assignee of
this Assignment Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
of the Assignee. This Assignment Agreement has been duly executed and delivered
by the Assignee and constitutes the valid and legally binding obligation of the
Assignee enforceable against the Assignee in accordance with its respective
terms except as enforceability thereof may be limited by bankruptcy, insolvency,
or reorganization or other similar laws now or hereinafter in effect relating to
creditor's rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in law;
(c) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Assignee in connection with the execution, delivery
or performance by the Assignee of this Assignment Agreement, or the consummation
by it of the transactions contemplated hereby; and
(d) The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Purchase Agreement and the Mortgage
Loans, and from and after the date hereof, the Assignee assumes for the benefit
of each of the Seller and the Assignor all of the Assignor's obligations as
Purchaser thereunder, with respect to the Mortgage Loans.
5. The Seller warrants and represents to, and covenants with, the
Assignor and the Assignee that:
(a) The Seller is not a natural person or a general partnership and
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation, and has all requisite power and authority to
service the Mortgage Loans;
(b) The Seller has full power and authority to execute, deliver and
perform under this Assignment Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by this
Assignment Agreement is in the ordinary course of the Seller's business and will
not conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Seller's charter or by-laws, or any legal restriction, or any
material agreement or instrument to which the Seller is now a party or by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Seller or its property is subject. The
execution, delivery and performance by the Seller of this Assignment Agreement,
and the consummation by it of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action of the Seller. This Assignment
Agreement has been duly executed and delivered by the Seller and constitutes the
valid and legally binding obligation of the Seller enforceable against the
Seller in accordance with its respective terms except as enforceability thereof
may be limited by bankruptcy, insolvency, or reorganization or other similar
laws now or hereinafter in effect relating to creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or in law;
(d) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Seller in connection with the execution, delivery or
performance by the Seller of this Assignment Agreement, or the consummation by
it of the transactions contemplated hereby;
(e) As of the date hereof, the Seller is not in default under the
Purchase Agreement; and
(f) No event has occurred or has failed to occur, during the period
commencing on date on which Assignor acquired the Mortgage Loans and ending on
the date hereof, inclusive, which would make the representations and warranties
set forth in Section 3.02 of the Purchase Agreement untrue if such
representations and warranties were made with respect to the Mortgage Loans
effective as of the date hereof.
Within sixty (60) days of the earlier of either, discovery by the
Seller or notice to the Seller from the Assignee, of a breach of any of the
foregoing representations and warranties with respect to a Mortgage Loan which
materially and adversely affects the value of such Mortgage Loan or the
Assignee's interests therein, the Seller shall use its best efforts to cure such
breach in all material respects and, if such breach is not cured within such
sixty (60) day period, the Seller shall, at the Assignee's option, repurchase
such Mortgage Loan at a price equal to the unpaid principal balance of the
Mortgage Loan as of the date or repurchase, plus accrued interest thereon to,
but not including, the date of repurchase.
In connection with any repurchase of a Mortgage Loan, the Assignee
shall reassign the provisions of the Purchase Agreement to the Seller with
respect to such Mortgage Loan, and provide for the prompt delivery of the
related custodial file to the Seller or its designee, as applicable.
6. From and after the date hereof, the Seller shall recognize the
Assignee as the owner of the Mortgage Loans, and shall look solely to the
Assignee for performance from and after the date hereof of the Assignor's
obligations with respect to the Mortgage Loans. Effective the date hereof, the
Seller, the Assignor and the Assignee agree that with respect to the Mortgage
Loans, the servicing provisions of the Purchase Agreement shall be restated and
amended to conform to [enter servicing standard here]
7. Notice Addresses.
(a) The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and this Assignment Agreement is:
______________________
______________________
______________________
Attention:____________
(b) The Assignor's address for purposes for all notices and
correspondence related to the Mortgage Loans and this Assignment Agreement is:
SunTrust Asset Funding, LLC
Mail Code 3950
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
(c) The Seller's address for purposes of all notices and
correspondence related to the Mortgage Loans and this Assignment Agreement is:
SunTrust Mortgage, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
8. This Assignment Agreement shall be construed in accordance with
the substantive laws of the State of New York (without regard to conflict of
laws principles) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, except to the extent
preempted by federal law.
9. This Assignment Agreement shall inure to the benefit of the
successors and assigns of the parties hereto. Any entity into which the Seller,
the Assignor or the Assignee may be merged or consolidated shall, without the
requirement for any further writing, be deemed the Seller, the Assignor or the
Assignee, respectively, hereunder.
10. No term or provision of this Assignment Agreement may be waived
or modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
11. This Assignment Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement by the Assignor.
12. Notwithstanding the assignment of the Purchase Agreement by
either the Assignor or Assignee, this Assignment Agreement shall not be deemed
assigned by the Seller or the Assignor unless assigned by separate written
instrument.
13. For the purpose for facilitating the execution of this
Assignment Agreement as herein provided and for other purposes, this Assignment
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such counterparts
shall constitute and be one and the same instrument.
[signature page to follow]
IN WITNESS WHEREOF, the parties have caused this Assignment
Agreement to be executed by their duly authorized officers as of the date first
above written.
SunTrust Asset Funding, LLC
Assignor
By:____________________________
Name:__________________________
Title:_________________________
_______________________________
Assignee
By:____________________________
Name:__________________________
Title:_________________________
_______________________________
Seller
By:____________________________
Name:__________________________
Title:_________________________
Exhibit E
Form of Monthly Servicing Report
On the Reporting Date set forth in Section 5.02 of the Agreement, the Purchaser
shall have received from the Servicer electronic information related to each
mortgage loan serviced on behalf of the Purchaser. All reports shall be
generated by the Servicer's loan servicing system and outline loan activity that
transpired during the immediately preceding calendar month.
All electronic information shall contain and be sorted by the Purchaser's loan
identification number as well as contain the Servicer's loan identification
number. Information regarding the Purchaser's inventory must be clearly
separated from that reported to other investors.
Each remittance must be clearly reconciled to detailed loan level remittance
information. All adjustments between information sent and actual remittance must
be identifiable at loan level.
The Loans Transferred In and Loans Transferred Out must be reconciled to
collective Notices of Servicing Transfer or Sale Notices received effective
during the respective Due Period. A monthly reconciliation of new loans added
and loans removed must be submitted.
The monthly electronic remittance file shall include the following data elements
at a minimum.
Field Name Field Description Field Type
------------------------------------------------------------------------------------------------------------------------------------
Purchaser Loan # Required The loan identification number Numeric, no comma's and no
assigned by Purchaser special characters (i.e $ and %)
Previous Servicer Loan # Numeric, no comma's and
no special characters (i.e $ and %)
Servicer loan number Required Servicer loan number Numeric, no comma's and
no special characters (i.e $ and %)
Actual interest collected Actual Interest amount Signed Numeric, no comma's
(at note rate) collected and no special characters (i.e $ and %)
from borrower
FNMA Action code Required Standard FNMA Action Code Numeric, no comma's and
for payoff loans coded with no special characters (i.e $ and %)
60-69 series of action code
FNMA Action date Required Payoff date ( I.e., 01-MAY-2001) Date : DD-MMM-CCYY
Interest remitted Required Net Interest dollars remitted. Signed Numeric, no comma's and
Actual interest dollars collected no special characters (i.e $ and %)
from borrower less service fee
Beginning Scheduled Required Scheduled note rate used to Signed Numeric, no comma's
note rate if reporting calculate the payment being and no special characters (i.e $ and %)
Scheduled / reported Only apply to
Scheduled Scheduled/Scheduled Loans. If
this is an Actual/Actual loan,
leave blank
Beginning Scheduled Required Scheduled P&I payment amount Signed Numeric, no comma's
P&I payment if reporting used to calculate the payment and no special characters (i.e $ and %)
Scheduled / being reported Only apply to
Scheduled Scheduled/Scheduled Loans. If
this is an Actual/Actual loan,
leave blank
Beginning Scheduled Required Scheduled service fee rate used Signed Numeric, no comma's
service fee rate if reporting to calculate the payment being and no special characters (i.e $ and %)
Scheduled / reported Only apply to
Scheduled Scheduled/Scheduled Loan. If
this is an Actual/Actual loan,
leave blank
Ending Due Date Required Loan due date per trial balance Date : DD-MMM-CCYY
report (I.e., 01-MAY-2001)
Ending Current rate Required Current Note rate per trial Signed Numeric, no comma's
balance report and no special characters (i.e $ and %)
Ending participant Required Ending participant principal Signed Numeric, no comma's
UPB balance (Always equal to the and no special characters (i.e $ and %)
'Ending 100% UPB' wholly owned
loans)
Ending 100% P&I pmt Required Ending 100% P&I payment amount Signed Numeric, no comma's
and no special characters (i.e $ and %)
Ending 100 %UPB Required Ending 100% principal balance Signed Numeric, no comma's
and no special characters (i.e $ and %)
Other fees remitted Required Fees remitted from Servicer This Signed Numeric, no comma's
should be your share of the fees and no special characters (i.e $ and %)
Principal remitted Required Total Principal amount remitted Signed Numeric, no comma's
(includes curtailments and and no special characters (i.e $ and %)
payoffs)
Ending Service fee rate Required Current Service Fee rate per Signed Numeric, no comma's
trial balance report and no special characters (i.e $ and %)
Ending Security Balance Required Ending security balance Only Signed Numeric, no comma's
if reporting apply to Scheduled/Scheduled and no special characters (i.e $ and %)
Scheduled / Loan. If this is an
Scheduled Actual/Actual loan, leave blank
Servicer Name Required Servicer Name Text
Servicer's Investor The distinct investor code
Code assigned by the servicer to the
pool of mortgage loans being
reported to identify the loans
separate from other pools being
serviced
Servicer Investor Code utilized by Servicer to
Code 1 segregate and identify each pool
of mortgage loans
Servicer Investor Additional code utilized by
Code 2 Servicer to further segregate
and identify subset of mortgage
loans within Servicer Investor
Code 1
Primary Borrower Text
Last Name
Primary Borrower Numeric, no comma's and
Social Security Number no special characters (i.e $ and %)
Property Xxxxxx Xxxxxxx Xxxx
Xxxxxxxx Xxxx Xxxx
Xxxxxxxx Xxxxx Xxxx, 0 characters
Property Zip Code Numeric, no comma's
and no special characters (i.e $ and %)
From time to time, the Purchaser may reasonably request the Servicer to add or
modify information being reported on the electronic reports at the Servicer's
expense. The Servicer must notify the Purchaser in the event servicing
circumstances dictate file layout changes
In addition to the electronic information set forth above, the Servicer shall
submit, on compact disc or other acceptable format, industry standard reports
outlined below in addition to electronic information. The financial elements
provided in the electronic information provided above must clearly reconcile to
information set-forth in these reports. From time to time, the Purchaser may
reasonably request the Servicer to add or remove standard industry reports at
the Servicer's expense.
Description of Report Example: Reference
Report Number (Alltel
System)
--------------------------------------------------------------------------------
Trial Balance P139
Payments Collected showing split of Principal &
Interest Payment S215
Paid-in Full/Liquidation Reports S214
Loans Removed -Transfers Out (B) T62R
Curtailments S213
New loans added/Transfers In (B) T62B
Non-financial Adjustments Report
Payoffs / Interim Cutoff Report S210
Pre-paid Loans (non-payoffs) S212
Delinquent Loans
Arm Change Report 24N
--------------------------------------------------------------------------------
Delivery
Remittance reports and related electronic information not suitable for
electronic transmission are to be delivered via overnight mail to the addressed
to:
[To be provided]
Delivery of Electronic Reports
Electronic data files shall be delivered to:
[_____]
Delivery of Remittances
Funds to be remitted pursuant to this Agreement shall be delivered via wire
transfer using the following instructions:
[_____]
Exhibit F
Form of Assignment and Conveyance
On this ____ day of ________, 2005, SunTrust Mortgage, Inc. ("SunTrust") as the
Seller and Servicer under that certain Seller's Purchase, Warranties and
Servicing Agreement, dated as of November 1, 2005 (the "Agreement"), by and
between SunTrust and SunTrust Asset Funding, LLC (the "Purchaser") does hereby
sell, transfer, assign, set over and convey to the Purchaser under the
Agreement, without recourse, but subject to the terms of the Agreement, all
rights, title and interest of SunTrust in and to the Mortgage Loans and the
related servicing rights listed on the Mortgage Loan Schedule attached hereto as
Schedule A, together with the Mortgage Files and all rights and obligations
arising under the documents contained therein. Pursuant to Section 2.07 of the
Agreement, SunTrust has delivered to the Purchaser the documents for each
Mortgage Loan to be purchased as set forth therein. The contents of each
Servicing File required to be retained by SunTrust to service the Mortgage Loans
pursuant to the Agreement and thus not delivered to the Purchaser are and shall
be held in trust by SunTrust, for the benefit of the Purchaser as the owner
thereof. SunTrust's possession of any portion of the Servicing File is at the
will of the Purchaser for the sole purpose of facilitating servicing of the
related Mortgage Loan pursuant to the Agreement, and such retention and
possession by SunTrust shall be in a custodial capacity only. The ownership of
each Mortgage Note, Mortgage, and the contents of the Mortgage File and
Servicing File is vested in the Purchaser and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or which come
into the possession of SunTrust shall immediately vest in the Purchaser and
shall be retained and maintained, in trust, by SunTrust at the will of the
Purchaser in such custodial capacity only.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
SUNTRUST MORTGAGE, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
Schedule A
Mortgage Loan Schedule
Exhibit G
Request for Release of Documents and Receipt
RE: Mortgage Loan #
BORROWER:
PROPERTY:
Pursuant to a Seller's Purchase, Warranties and Servicing Agreement (the
"Agreement") between the Seller, the Servicer and the Purchaser, the undersigned
hereby certifies that he or she is an officer of the Servicer requesting release
of the documents for the reason specified below. The undersigned further
certifies that:
(Check one of the items below)
_____ On _________________, the above captioned mortgage loan was paid in
full or the Servicer has been notified that payment in full has been
or will be escrowed. The Servicer hereby certifies that all amounts
with respect to this loan which are required under the Agreement
have been or will be deposited in the Custodial Account as required.
_____ The above captioned loan is being repurchased pursuant to the terms
of the Agreement. The Servicer hereby certifies that the repurchase
price has been credited to the Custodial Account as required under
the Agreement.
_____ The above captioned loan is being placed in foreclosure and the
original documents are required to proceed with the foreclosure
action. The Servicer hereby certifies that the documents will be
returned to the Purchaser in the event of reinstatement.
_____ Other (explain)
All capitalized terms used herein and not defined shall have the meanings
assigned to them in the Agreement.
Based on this certification and the indemnities provided for in the Agreement,
please release to the Servicer all original mortgage documents in your
possession relating to this loan.
Dated: _________________ By:__________________________________
Signature
__________________________________
Title
Send documents to: _____________________________________________
_____________________________________________
_____________________________________________
Acknowledgment:
Purchaser hereby acknowledges that all original documents previously released on
the above captioned mortgage loan have been returned and received by the
Purchaser.
Dated: _________________ By:__________________________________
Signature
__________________________________
Title
Exhibit H
Form of Bring Down Letter
[SunTrust Asset Funding, LLC Letterhead]
_____, 200_
SunTrust Mortgage, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Seller's Purchase, Warranties and Servicing
Agreement, dated as of November 1 , 2005
Ladies and Gentlemen:
Reference is made to Section 10.01(b)(iii) of the referenced
Seller's Purchase, Warranties and Servicing Agreement, dated as of November 1,
2005 (the "Agreement"), among SunTrust Asset Funding, LLC, as Purchaser and
SunTrust Mortgage, Inc., as Seller and Servicer. Capitalized terms used herein
and not otherwise defined have the meanings set forth in the Agreement.
Pursuant to such Section 10.01(b)(iii), we hereby notify you that
the representations and warranties set forth in Sections 3.01 and 3.02 of the
Agreement with respect to the Mortgage Loans identified on Exhibit A hereto are
being made by you as of ____, 200_ (the "Bring-Down Date").
This letter will be the only document evidencing your obligation to
make the representations and warranties set forth in Sections 3.01 and 3.02 with
respect to the Mortgage Loans identified on Exhibit A hereto as of the
Bring-Down Date. Reference is made to Section 3.03 of the Agreement for the
procedures to be followed by the parties to the Agreement in the event of any
breach of a representation and warranty and the remedies therefore.
Very truly yours,
SunTrust Asset Funding, LLC,
as Purchaser
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
Exhibit I
Form of Annual Certification
Re: The [_______] agreement dated as of [_______], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, , the of [NAME OF COMPANY], certify to [the Purchaser], [the
Depositor], and the [Master Servicer] [Securities Administrator] [Trustee], and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the [Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and except as
disclosed in the Compliance Statement, the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement; and
(5) The Compliance Statement, the Servicing Assessment and the
Attestation Report required to be provided by the Company pursuant to the
Agreement have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date:_____________________________________
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
